County of Cook v. Priester

No. 71 CH 402 (Ill. Cir. Ct. July 13, 1972)

A county zoning ordinance attempting to regulate the flight patterns and restrict the weight of aircraft using a privately-owned airport is declared unconstitutional and its enforcement is permanently enjoined. The Federal Aviation Act of 1958 shows Congress' intent to give the federal government, acting thru the F.A.A., complete and exclusive sovereignty of the air space of the United States. The ordinance is an attempt to exercise local police power in an area preempted by federal law and violates the supremacy clause contained in Article VI of the Constitution of the United States. The court relies heavily on Lockheed Air Terminal v. Burbank (2 ELR 20145).

Counsel for Plaintiffs
Robert Sarnoff
Office of State's Attorney of Cook County
160 North LaSalle St.
Chicago, Ill. 60602

Counsel for Defendants
Charles J. O'Connor
Arvey, Hodes & Mantynband
One North LaSalle St.
Chicago, Ill. 60602

[3 ELR 20183]

Cohen, J.

DECREE

This cause coming on to be heard on the Amended Complaint filed by the COUNTY OF COOK and the Complaint filed by the Intervening Petitioner, VILLAGE OF WHEELING, the Answers filed in response thereto by the defendants, GEORGE J. PRIESTER, VETA L. PRIESTER, and WAUKEE REALTY COMPANY, INC., the Counter-Complaint filed by the defendants and counter-plaintiffs, and the Answers filed in response thereto by the counter-defendants COUNTY OF COOK and VILLAGE OF WHEELING, and the Reply filed by the counter-plaintiffs to the Answer filed by the counter-defendant VILLAGE OF WHEELING, and the parties having introduced evidence, and the Court having heard and considered all evidence, exhibits, the pleadings, memoranda of law, and the arguments of the respective counsel, and being fully advised in the premises, DOES FIND AS FOLLOWS:

1. That the Court has jurisdiction of the parties and the subject matter hereof.

2. That the plaintiff and counter-defendant COUNTY OF COOK is an Illinois municipal corporation.

3. That the intervening petitioner and counter-defendant VILLAGE OF WHEELING is an Illinois municipal corporation.

4. That the defendants and counter-plaintiffs, GEORGE J. PRIESTER, VETA L. PRIESTER, and WAUKEE REALTY COMPANY, INC., are the owners of, and are doing business as, PAL-WAUKEE AIRPORT, the site of said airport being located within the unincorporated area of the County of Cook south of the Village of Wheeling, and not located within the boundaries of said Village nor immediately contiguous thereto.

5. That the subject property was classified and developed as a [3 ELR 20184] permitted use under the farming classification of the original Zoning Ordinance of the County of Cook enacted in 1940 and was further classified as being a land area entitled "Designated Airport Area".Under the 1957 amendment to said Zoning Ordinance the property was classified as a special use within the M-1 manufacturing district. The terms of the Cook County Zoning Ordinance provide that all airports are considered to be special uses within certain zoning classifications of districts as defined in the Ordinance.

6. That the defendants and counter-plaintiffs, GEORGE J. PRIESTER, VETA L. PRIESTER, and WAUKEE REALTY COMPANY, INC., during the year 1963 applied to the Zoning Board of Appeals of Cook County for an extension of the existing special use in order to extend the existing NNW/SSE runway. Pursuant to said application the Zoning Board of Appeals of Cook County conducted public hearings and made certain findings and recommendations to the Cook County Board of Commissioners a legislative body vested with the authority to enact amendments to the Cook County zoning ordinance.

7. That on March 16, 1964 the Board of Commissioners of Cook County enacted a certain ordinance, to-wit:

No. 55403 — Application of George J. Priester & Associates, Pal-Waukee, Wheeling, Ill., submitted by Attorney Joseph I. Buljer, 188 W. Randolph St., Chicago, for hearing on a request for proposed Special Use for an Expansion of Existing Airport on property consisting of approximately 81 acres located at the Southeast Corner of Hintz Road and Wolf Road in Wheeling Township, legally described therein, in the M-1 (Restricted Manufacturing) District.

Note: Special Use granted subject to conditions set forth in recommendations of Zoning Board of Appeals.

The conditions of the special use permit, referred to above, and recommended by the Zoning Board of Appeals, were as follows:

(1) The NNW/SSE runway is not to be extended beyond a total length for the runway of 5000 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.

8. That the Court has heretofore found that the VILLAGE OF WHEELING, the Intervening Petitioner, is without standing in this cause as a matter of law and has presented no evidence showing harm to itself or its residents, and did then dismissthe Intervenor's Complaint at the close of the Intervenor's case and did enter judgment thereon.

The VILLAGE OF WHEELING lacks standing to appear before this Court relative to the enforcement of the Cook County Zoning Ordinance pertaining to the subject property located outside the physical boundaries of the Village, said property lying entirely within the unincorporated area of Cook County, Krembs v. County of Cook, 121 Ill. App.2d 148; Village of Mount Prospect v. County of Cook, 113 Ill. App.2d 336; Village of Bensenville v. County of DuPage, 30 Ill. App.2d 324.

Even if the Village were considered to be a "person", a person must show unique injury or harm specifically related to him and proof of a mere technical violation of a zoning ordinance is insufficient to entitle a person to standing, Swain v. County of Winnebago, 111 Ill. App.2d 458; 222 East Chestnut Street v. LaSalle National Bank, 15 Ill. App.2d 460. In the instant case there was no showing of any harm or injury, specific or otherwise, that would entitle the Village of Wheeling to remain as a party.

The VILLAGE OF WHEELING contends that the COUNTY OF COOK has authority to regulate air traffic patterns so that all aircraft taking off and landing at Pal-Waukee Airport will fly east of the Village of Wheeling. This issue was expressly disavowed by the State's Attorney. In the case of Williams v. Arizona Superior Court, 11 Avi. 18,371, the Arizona Court of Appeals held that the traffic pattern, including the take off and landing of aircraft, was an activity preempted by the federal government and vested in the Federal Aviation Administration. A school district had sought a temporary injunction restraining the take off and landing within the air space immediately above or proximate to the school buildings, except in emergency situations.

In the instant case, the evidence clearly shows that a local school was erected in the approach path of the runway subsequent to the construction of said runway. Indeed, several witnesses called by the Village had moved into the area long after the completion of the runway.

In the case of Herman v. Village of Hillside, 15 Ill.2d 396, the Court considered the status of complaining witnesses who had constructed homes in the area of a quarry that was to be extended and stated at page 407:

"We have often said that the facts in each particular case must be taken into consideration in applying the well-known rules of the zoning law. After a consideration of all of the factors here involved, including the single ownership of the fee of this land which has been used for quarrying for a great number of years, the existence of the present quarry, the availability of a natural resource, the use of part of the present property and adjacent property for quarrying over long periods of time, the severe loss to both the fee owners and the lessee as compared to the relatively small increase in inconvenience to owners in the neighborhood, we are of the opinion that the classification is unreasonable. This is particularly true since most of the residential construction in the area has been done with the full knowledge of the existing quarry, and there is no substantial proof that the proposed extension will materially affect the owners."

9.That between the plaintiff and counter-defendant COUNTY OF COOK and the defendants and counter-plaintiffs, GEORGE J. PRIESTER, VETA L. PRIESTER, and WAUKEE REALTY COMPANY, INC., a justiciable controversy exists.

10. That the Court, upon motion of defendants for a finding at the close of the evidence presented by the COUNTY OF COOK and Intervening Petitioner VILLAGE OF WHEELING, heretofore found that the COUNTY OF COOK had failed to prove the allegations of Counts II and III of its Amended Complaint, being criminal in nature, beyond a reasonable doubt, and that the Court did then dismiss Counts II and III of the Amended Complaint filed by the COUNTY OF COOK and entered judgment thereon.

11. That Pal-Waukee Airport (hereinafter referred to as "the Airport") is a privately-owned, publicly-operated airport located in the northwest section of the Chicago metropolitan area. It is a modern, sophisticated facility having a control tower staffed by personnel of the Federal Aviation Administration, an agency of the Government of the United States. The Airport is equipped to handle both visual and instrument flight operations. The Airport has a principal runway of 5,000 feet in length and several shorter runways. The principal runway, also known as the NNW/SSE ranway or runway 16-34, is the longest runway in the Chicagoland area except for runways located at O'Hare International Airport and Midway Airport.

The Airport employs 140 persons in various capacities, furnishes facilities for the maintenance and repair of aircraft, and operates various equipment which contributes to the safe operation of aircraft.

The Airport is found to be one of only three privately-owned and publicly-operated airports in the United States wherein FAA personnel staff control towers. In order for an airport to be eligible to qualify for an FAA operated control tower, certain minimum standards are established by the agency pertaining to flight safety, the number of aircraft operations, and the overall impact of the airport on national air transportation. Pal-Waukee Airport complies with all FAA criteria relative to the public need for establishing an EAA operated tower on the Airport. The significance of the Airport in the system of national aviation transportation is reflected in the fact that hundreds of airports owned and operated by state and local governments are without FAA operated towers.

[3 ELR 20185]

12. That the FAA controls all ground movement, flight patterns, takeoffs and landings, of aircraft using the facility. During the period of time the control tower at Pal-Waukee Airport is closed, aircraft using the Airport are under the Direction and control of the control tower located at O'Hare International Airport.

Therefore, with respect to condition (3), to-wit:

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,

this Court expressly finds that the COUNTY OF COOK, as contended in the Counterclaim filed herein, is without authority to regulate flight patterns from the Airport and that flight patterns are within the exclusive jurisdiction and authority of the Federal Aviation Administration, American Airlines v. Town of Hempstead, 398 F.2d 369 (1968); Allegheny Airlines, Inc. v. Village of Cedarhurst, 238 F.2d 812 (1956). The court in American Airlines, Inc. v. City of Audubon Park, Kentucky, 297 F. Supp. 207 (1968), aff'd. 407 F.2d 1306 (1969), a case involving a local ordinance establishing a minimum altitude for aircraft passing over the Village, held that the Village has no authority to regulate interstate and foreign air traffic by ordinance, and therefore the ordinance was held to be unconstitutional and void. To the extent that the COUNTY OF COOK has purported to regulate flight patterns, the action of the COUNTY enters into an area of activity totally preempted by the federal government and as a consequence violates the supremacy clause contained in Article VI of the Constitution of the United States.

13. That relative to the allegations contained in the Amended Complaint filed by the COUNTY OF COOK alleging that the runway was built in excess of 5,000 feet, in violation of condition (1), to-wit:

The NNW/SSE runway is not to be extended beyond a total length for the runway of 5000 feet from the starting point of the present runway near Hintz Road,

this Court expressly finds that the evidence reflects that the runway was constructed according to the plans and specifications filed with the COUNTY OF COOK and that said runway has not been physically altered to date. The Court finds that the runway does not exceed 5,000 feet in length.

The evidence further shows that turn-around areas, over-run areas or blast pads are situated on both ends of the runway. These areas are common to airports that do not have taxi strips running parallel to their runways. The purpose served by these areas is to facilitate the turning of aircraft, the holding of aircraft during the take-off and landing of other aircraft, and to prevent the erosion of soil caused by the exhaust of aircraft warming up prior to take-off. These areas are found to be necessary for flight operations and contribute to the safety of said operations.

Further, turn-around areas or blast pads, being common to the normal operation of an airport, are considered as "incidental uses" under zoning terminology. When located within the physical boundaries of the subject property, an incidental use does not require a special use permit in order to be constructed, County of Cook v. Hoytt, 59 Ill. App.2d 368; Howard v. Lawton, 22 Ill.2d 331. The corollary of this proposition is that once the use is established, either as a permissive use or a special use, all incidental uses may be developed therein without the permission of the zoning authority, Western Theological Seminary v. City of Evanston, 325 Ill. 511; 331 Ill. 257 and 34 Ill. App.2d 162.

14. That the Airport is included within the National Airport Plan, as embodied within the official document of that name published by the United States Government, and will be included in the "National Airport System Plan", the successor document to the "National Airport Plan" and as yet unpublished. Airports included in the National Airport Plan are deemed to be airports considered by the Department of Transportation of the United States Government to be related to the national interest. The Plan is discussed at length in the case of Lockheed Air Terminal v. Burbank, 457 F.2d 667 (1972), 3 ERC 1983. In order to be considered eligible for entry within either plan, an airport must meet certain minimum standards established by the FAA, which are set forth within the documents and received in evidence. The standards of the Plan require that a minimum number of itinerant or transient flights be conducted at the airport, that a minimum number of the general aviation aircraft be based at the airport, and that the airport itself serves the needs of both the community and interstate commerce.

That under both Plans, Pal-Waukee is classified as a reliever airport to O'Hare International Airport, the busiest airport in the world. It is the function of a reliever airport to provide facilities for aircraft which would otherwise use the overburdened facilities of the airport to be relieved, in this case O'Hare International Airport. The result of the relationship established between the relieved and reliever airports is to reduce congestion and thereby increase flight safety.

The evidence shows that Pal-Waukee Airport meets the standards established by the National Airport Plan and the National Airport Systems Plan. Approximately 185,000 flight operations were conducted at Pal-Waukee in the year 1971, including 64,000 itinerant or transient flights which are interstate in nature. The evidence further showed that there are 350 aircraft based at Pal-Waukee Airport, including 200 executive or general aviation aircraft. The aforesaid aircraft, especially the executive aircraft, are commonly used for interstate flights.

Under the new National Airport Systems Plan the Airport is classified as a secondary airport. The secondary classification includes such major airports as Detroit, Milwaukee and Minneapolis-St. Paul. In short, as was stated in the testimony of the employees of the Federal Aviation Administration, and as set forth in the National Airport Plan received in evidence, Pal-Waukee Airport, being included in the Plan, relates directly to the national interest.

15. That Pal-Waukee Airport has a substantial effect on interstate commerce. The evidence showed that the airport is ranked 50th in general aviation operations and 90th in total aircraft operations among more than 5,000 airports in the country. The testimony of the witnesses from the City of Chicago and the Federal Aviation Administration is to the effect that the Airport is essential to the aviation needs of the Chicago metropolitan area, and has a substantial effect on the operations of O'Hare International Airport. Interstate air carriers bearing a Certificate of Public Convenience and Necessity issued by the Interstate Commerce Commission are diverted from O'Hare to Pal-Waukee during peak periods when aircraft are compelled to circle in a holding pattern for as long as one and a half hours before receiving clearance to land.

In the event of the closing of Pal-Waukee Airport the evidence showed that there are no other facilities to absorb either the air traffic at Pal-Waukee or to provide adequate storage space for the aircraft based at Pal-Waukee. O'Hare International Airport has already limited its facilities to general aviation flight operations. Only approximately 20 of the 200 teneral aviation aircraft based at Pal-Waukee could be based on O'Hare. Testimony further showed that many local airports have closed over the years. The Assistant Manager of O'Hare International Airport testified that he did not know where the Pal-Waukee aircraft could be absorbed.

16. That the Airport has a substantial and beneficial effect on the surrounding community. The Airport provides employment for persons in the community and is a significant factor in the economic growth and development of the area. Many industries and businesses in the Wheeling area consider the Airport a vitalpart of their business activities. As stated in the National Airport Plan, at page 4:

"The economic impact of an airport on the community can be measured directly through such means as employee payrolls, receipts from sale of aviation fuel, or income from rental of hangar space. . . .

"The existence of general aviation airports has aided business and industry in establishing new office and plant locations, thereby creating new investments, employment, and sales."

A witness representing the Wheeling Chamber of Commerce testified that he had surveyed approximately 100 businesses in the Wheeling area and that not one was opposed to the operation of the Airport. He described the facility as being "the very heart of [3 ELR 20186] the Wheeling area" and considered it essential for the continued economic growth and development of said area.

This Court must consider the present location of the Airport as a unique site in that there is no comparable site available in the area that could be feasibly developed as an airport. In Elmhurst-Chicago Stone Co. v. County of Kane, 129 Ill. App.2d 190, involving a special use permit for a quarry, the court recognized that certain special uses are unique in that they cannot be duplicated elsewhere, whereas many special uses are suitable to a number of sites in a given area. The court noted that the particular special use was essential, not only to the property owner, but to the public in general. We find the rationale of the opinion to be applicable in the instant case.

17. That Pal-Waukee Airport contributes significantly to the national defense.One hundred ninety-one flight operations by army and navy aircraft were conducted at the facility in 1971. The evidence further showed that militaty aircraft have used the facility for emergency landings. During certain periods when Glenview Naval Air Station is closed, naval aircraft are diverted to Pal-Waukee.

Pal-Waukee Airport has contracts for the flight training of army and navy ROTC personnel. From time to time personnel of the Fifth Army, United States Army, are trained at the facility. Because all flight training is prohibited at O'Hare International Airport, the question arises where this training would be conducted in the absence of Pal-Waukee Airport.

The Civil Air Patrol has its headquarters at the Airport. This organization has been acknowledged to contribute to national defense in that it conducts searchers for lost airctaft and persons, is a useful adjunct to law enforcement agencies, and provides a manpower pool of reserve pilots in the event of war. The evidence shows that there is no facility in the area that could absorb the transfer of the Civil Air Patrol operations.

It is to be noted that the Illinois Department of Aviation also has its headquarters at Pal-Waukee Airport and that the facility is used by the official planes owned and operated by the State of Illinois.

A retired Brigadier General testified that the Airport is necessary for the national defense in that it provides a facility for the movement of troops in time of war or internal strife. In the event that other facilities in the area were sabotaged or incapacitated, the Airport would then become a vital and critical defense installation.

18. That Pal-Waukee Airport can no longer be economically operated under the provisions or conditions of the special use ordinance. This Court takes judicial notice of the inflationary conditions which contribute to an increase in real estate taxes, salaries, and the cost of doing business in general. Taxpayers are benefited by the public use of this facility which must economically compete with governmentally-owned airports subsidized by the taxpayer. As to the taxpayer, the Airport is a revenue-producing asset as distinguished from those governmentally-owned airports supported by the taxpayer.

In the absence of jet fuel sales to aircraft whose weight ranges between 50,000 and 75,000 pounds operating take-off weight, the Airport would operate at a net loss. The trend in aircraft is toward heavier, higher performing aircraft. These aircratt, although capable of carrying increasingly heavier payloads, require less runway length than did the older propeller driven aircraft or the earlier type of jets. For example, the main runway at Midway Airport, owned and operated by the City of Chicago, has a length of approximately 5,700 feet and regularly handles air carrier aircraft such as the Boeing 727 and the Douglas DC-9, which range in weight from 89,000 to 125,000 pounds operational take-off weight.

There is no evidence in the record that the operation of heavier aircraft per se will cause harm to persons or property surrounding the Airport. It should be noted that Midway Airport is operated in an area densely surrounded by residential land uses. The Court judicially notes that the public policy of the City of Chicago is to encourage air traffic to Midway in order to utilize the facility to its maximum potential and to thus relieve O'Hare International Airport. Several Witnesses, having extensive aviation backgrounds, testified that Pal-Waukee Airport should be utilized to its maximum potential and capacity.

In a case involving a non-conforming use the court, in Schneider v. Board of Appeals, 402 Ill. 536, reviewed the relationship of the police power of the state to the rights of the property owner as follows:

"The right of cities and villages to enact zoning ordinances, thereby imposing a reasonable restraint upon the use of private property, is established beyond question or doubt. The right which every owner has to use his property in his own way and for his own purposes is subject always to the exercise of police power and it is in the exercise of this power that zoning ordinances are adopted. The police power, however, is limited to enactments having reference to the public health, safety, morals or welfare, and zoning ordinances which restrict the property rights of individuals without having any direct substantial relationship to the promotion of the public health, safety, morals or welfare are invalid. (Village of LaGrange v. Leitch, 377 Ill. 99). Whether an ordinance has any real substantial relation to the public health, comfort, safety or welfare, or is arbitrary or unreasonable is a question that is subject to review by the courts. (Offner Electronics, Inc. v. Gerhardt, 398 Ill. 265; Harmon v. City of Peoria, 373 Ill. 594). Highly injurious restrictions lacking basis in the public good come within the constitutional inhibition against taking private property for public use without just compensation. (Tews v. Woolhiser, 352 Ill. 212). The general scheme of a zoning ordinance may be valid, yet, as applied to a particular property within the area zoned, such facts might exist that if the terms of the ordinance are enforced it would result in an arbitrary andunreasonable injury to the owner of the property or the confiscation thereof. (People ex rel Kirby v. City of Rockford, 363 Ill. 531.) In that situation, as applied to such designated real estate, the ordinance is void. (Douglas v. Village of Melrose Park, 389 Ill. 98; People ex rel Kirby v. City of Rockford, 363 Ill. 531; Village of LaGrange v. Leitch, 377 Ill. 99.) Every zoning case must be determined upon its own peculiar facts. (Anderman v. City of Chicago, 379 Ill. 236; Village of LaGrange v. Leitch, 377 Ill. 99). The right to a nonconforming use is a property right and any provision of a statute or ordinance which takes away that right in an unreasonable manner, or in a manner not grounded on public welfare, is invalid. (Douglas v. Village of Melrose Park, 389 Ill. 98.)

As a consequence, this Court finds that the special use condition purporting to regulate the size of aircraft causes great harm to the owners of Pal-Waukee Airport with little, if any, corresponding benefit to the public. In fact, to enforce the condition in light of changes in aircraft since the year 1964 would work directly against the public interest. Continued growth and development of air transportation is as vital to the survival of the nation as is water to the survival of each of us. Moreover the enforcement of the 60,000 pound weight limit as interpreted by the County would diminish the use of Pal-Waukee as a reliever airport for O'Hare, thus creating a greater congestion of air traffic and consequently creating a more dangerous air travel condition. An additional danger is likewise created by the weight limit conditions in limiting the use of Pal-Waukee as an emergency landing field for larger planes.

19. Relative to the allegations contained in the Amended Complaint filed by the County of Cook alleging that aircraft in excess of 60,000 pounds gross weight have operated out of Pal-Waukee Airport in violation of condition (2), to-wit:

The NNW/SSE runway is to be constructed for a load bearing capacity under regular service not to exceed 60,000 pounds,

this Court expressly finds that the condition purportedly violated does not refer expressly to aircraft but to the weight-bearing capacity of the runway.It is a fundamental principle that zoning ordinances are to be strictly construed and interpreted in favor of the property owner, Oak Park Tr. & Sav. Bank v. Village of Elmwood Park, 113 Ill. App.2d 121; Voisard v. County of Lake, 27 Ill. App.2d 365, 169 NE2d 805. The Amended Complaint of the [3 ELR 20187] COUNTY OF COOK alleges elements not contained within the condition of the ordinance. While it may be inferred that it was the intent of the Zoning Board of Appeals and the County of Cook in enacting the above condition to prohibit aircraft in excess of the gross weight of 60,000 pounds, this is not the limitation found in the ordinance. Thus the defendants are not charged with violating an ordinance but with violating an interpretation of an ordinance. This concept violates fundamental due process.

20. That to the extent that condition (2) purports to limit the gross weight of aircraft using the facility, as alleged in the Counter-Complaint for a Declaration of Rights, the condition is found to be unconstitutional, void and without effect. The condition is constitutionally defective on several grounds. While the COUNTY OF COOK has the authority to regulate land uses and establish certain areas for airport uses under its zoning laws, it is without the authority to regulate the manner in which the airport is conducted. A contrary holding would vest the County and its Zoning Board of Appeals with unlimited powers, exercisable through special legislation. In this case the size of the aircraft using the facility relates to the operation of the business as distinguished from the regulation of the land use itself.

In the matter of DeVille Homes, Inc. v. Michaelis, 201 N.Y.S.2d 129 (1960), involving a condition upon a special use permit granted by the zoning board which required that an attendant be on duty at a laundromat during certain hours, the court held in striking down the condition that the condition was not related to the use but the method of doing business. The court said:

"I think, however, that the legislative policy with respect to the operation of unattended coin-operated laundromats is one to be determined by legislative authorities and not by administrative bodies such as Board of Zoning Appeals. The power granted to or inherent in such Boards to impose reasonable conditions under proper circumstances applies to use of premises and not details of operation." (p. 130)

The Court is familiar with the concept of special use conditions. A limitation on the size of mobile homes would not be a reasonable condition to impose upon a special use permit for a mobile home park. A limitation on the size of a truck using a freight terminal would not be reasonably related to a special use permit establishing a truck terminal.

The court in Schlosser v. Michaelis, 238 N.Y.S.2d 433, 18 A.D.2d 940 (1963), struck down the following special use conditions:

"(a) there shall be a maximum of eleven employees; (b) the hours of operation shall not be earlier than 7:30 A.M. nor later than 6:30 P.M., except on Saturadays and Sundays; (c) there shall be no operations, including deliveries, conducted on Saturadays after 2 P.M. and no operations whatever conducted on Sundays; (d) there shall be no 'deliveries of merchandise to the premises received between' 10 P.M. and 7:30 A.M.; and (e) there shall be no more than five trucks stored outside the building overnight at any time and none of these trucks shall have a carrying capacity in excess of two tons."

The court held:

"Nevertheless, the Board of Appeals has no power to impose conditions which apply to the details of operation of the business and not to the zoning use of the premises (DeVille Homes, Inc. v. Michaelis, Sup., 201 N.Y.S.2d 129). A Board of Zoning Appeals has no power to impose standards, requirements or conditions which are not set forth in the zoning ordinance (DeVille Homes, Inc. v. Michaelis, supra; Matter of Community Synagogue v. Bates, 1 N.Y.2d 445, 455, 154 N.Y.S.2d 15, 23, 136 N.E.2d 488, 494; Matter of Oakwood Island Yacht Club, Inc. v. Board of Appeals, 32 Misc. 2d 677, 223 N.Y.S.2d 907; Application of Long Island Lighting Company v. Voehl, 27 Misc. 2d 943, 211 N.Y.S.2d 576, affd. 15 A.D.2d 512, 222 N.Y.S.2d 589)."

Authorities presented from other jurisdictions hold such special use conditions to be unconstitutional as being beyond the powers of the zoning authority, confiscatory, or not reasonably related to the public health, safety or welfare, Soho Park & Land Co. v. Board of Adjustment of Town of Belleville, New Jersey Sup. Ct., 142 A. 548 (1928).

21. That the limitation imposed by condition (2) would in effect discriminate against the Airport owned by the defendants. Several witnesses employed by federal and local agencies, knowledgeable in the field of aviation, testified that they did not know of a similar condition or limitation imposed on any airport in the United States by federal, state or local law. A special use condition may not discriminate against a particular person in the conduct of his business, Oakwood Island Yacht Club v. Board of Appeals, 223 N.Y.S.2d 907 (1961). The County as an owner of an airport may well have the authority to impose such a limitation, but this authority would flow from its ownership or proprietary interest, not from its police powers. Because similar conditions are not imposed on other airport facilities, the Court finds that defendants are deprived of their due process and equal protection guaranteed by law because of the discriminatory nature of the condition.

22. That condition (2) is an indirect attempt to govern and regulate interstate commerce. The United States Supreme Court, in Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945), held in invalidating state regulation of the length of railroad trains that local government has wide scope to regulate matters of local concern but it does not have authority to impede substantially the free flow of interstate commerce or interfere with matters in which uniformity of regulation is demanded by a single authority. The court held:

"The states have not been deemed to have authority to impede substantially the free flow of commerce from state to state, or to regulate those phases of the national commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority. (p. 767)

* * *

"There has thus been left to the states wide scope for the regulation of matters of local state concern, even though it in some measure affects the commerce, provided it does not materially restrict the free flow of commerce across state lines, or interfere with it in matters with respect to which uniformity of regulation is of predominant national concern. (p. 770)

* * *

"Similarly the commerce clause has been held to invalidate local 'police power' enactments fixing the number of cars in an interstate train and the number of passengers to be carried in each car. (p. 780)

* * *

"We have pointed out that when a state goes beyond safety measures which are permissible because only local in their effect upon interstate commerce, and 'attempts to impose particular standards as to structure, design, equipment and operation [of vessels plying interstate] which in the judgment of its authorities may be desirable but pass beyond what is plainly essential to safety and seaworthiness, the State will encounter the principle that such requirements, if imposed at all, must be through the action of Congress which can establish a uniform rule. Whether the state in a particular matter goes too far must be left to be determined when the precise question arises.'" (p. 781)

It could not be seriously argued that the COUNTY OF COOK could impose under the guise of a special use permit a condition limiting the length of trains using a railroad freight terminal.The effect or impact on interstate commerce remains the same.

The instant condition, unlike other customary land use conditions, affects areas far beyond the subject property and its surrounding uses. Similar ordinances enacted by local governments throughout the United States purporting to limit the [3 ELR 20188] weight of aircraft would severely impair, if not extinguish, general aviation transportation. An aircraft weighting 80,000 pounds taking off from an airport in the State of New York on a transcontinental flight is consequently limited and affected by condition (2) imposed on Pal-Waukee Airport.

23. That condition (2) is void as being contrary to public policy. The public policy of both the government of the United States, as reflected in the National Airport Plan, and the State of Illinois, as stated in Chapter 15-1/2 Section 22.25, Illinois Revised Statutes, 1971, is to promote and encourage the growth of aviation. It is apparent that condition (2) is directly contrary to the state and national policy and is therefore void.

24. That condition (2) insofar as it purports to regulate the weight of aircraft using Pal-Waukee Airport is unconstitutional in that it violates the supremacy clause contained in Article VI of the Constitution of the United States. The Federal Government, acting through the Federal Aviation Administration, has complete and exclusive sovereignty of the air space of the United States, Opinion of the Justices, 271 N.E.2d 354 (Mass. Sup.Ct. 1971); United States v. City of New Haven, 447 F.2d 972, 11 Avi. 18,324 (1971). This policy of exclusivity is set forth in 49 U.S.C. 1508 (a), which provides as follows:

"The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States."

This language is a clear manifestation of Congressional intent to preempt navigable air space. As the court, in the case of Lockheed Air Terminal v. Burbank, 3 ERC 1983, at page 1986, stated:

"Therefore, if Congress expressly declares that the authority conferred by it shall be singularly federal, the States may not exercise concomitant or supplementary power over the identical activity."

The court then continues and applies three standards to determine federal exclusivity in the absence of a clear expression of Congressional intent. The court stated:

"Key factors in this determination include: (1) the pervasiveness of the federal regulation; (2) dominance of the federal interest in the field of regulation; and (3) the objectives of the federal regulation and whether non-federal regulation obstructs the full execution of those aims." (Citations omitted.)

The Burbank case is controlling because of the substantial similarity of its essential facts to those involved in the instant case. The Lockheed Air Terminal and Pal-Waukee are both privately-owned, publicly-operated airports. Lockheed Air Terminal, Pal-Waukee Airport, and an airport in Texas, are the only private airports wherein FAA personnel operate control towers. As in the instant case, the Lockheed Air Terminal was used by public carriers as well as general aviation aircraft. The Burbank court struck down the Burbank ordinance which purported to establish a curfew limiting the take-off and landing of jet aircraft during certain hours. The basis of the decision was that thecity was attempting to exercise its police powers in an area preempted by federal law.

Lockheed Air Terminal was also included in the National Airport Plan. The opinion discusses at great length the purpose and standards of the Plan within the framework of the national aviation program. The Burbank opinion deals extensively with the history of federal legislation and the significant case law involving the validity of local ordinances that attempted to regulate air transportation.

The footnote on page 1989 of the opinion notes that the curfew ordinance had the effect of terminating the right of flight of prospective passengers through the particular portion of air space at that specific time. A review of the federal statutes would indicate that general aviation aircraft are entitled to the same rights of flight as the public carrier referred to in the Burbank decision. General aviation or executive aircraft are included within the definition of interstate air commerce, 49 U.S.C. Sec. 1301 (20), which defines interstate air commerce to mean "the carriage by aircraft of persons or property for compensation or hire, or the carriage of mail by aircraft, or the operation or navigation of aircraft in the conduct or furtherance of a business or vocation."

It is absurd to argue that the Federal Government has exclusive jurisdiction over all navigable air space and to contend that this exclusivity does not apply to the aircraft traveling therein. In the matter of the Opinion of the Justices, 271 N.E.2d 354 (Mass. Sup.Ct. 1971), construing a proposed state law regulating the noise of aircraft, the court stated:

"Instead it purports to prevent nonconforming aircraft from landing or taking off anywhere in the Commonwealth. This exceeds any area which may still be left subject to State regulation." (p. 358)

As applied to the instant case, condition (2) impairs the right of flight of the BAC-111 owned by Victor Comptometer and based at Pal-Waukee Airport and all other aircraft in excess of 60,000 pounds whose operators or passengers may wish to avail themselves of the facilities of the Airport.

In the case of Town of East Haven v. Eastern Airlines, Inc., 331 F. Supp. 16 (1971), which involved an action for damages and injunctive relief brought by several property owners who resided in the immediate area of the Tweed-New Haven Airport, plaintiffs sought a mandatory injunction to close the airport or to forbid the use of jet aircraft. The court considered the propriety of injunctive relief in relationship to the general public's interest in air travel and held:

"No case has been found in which an injunction has been granted against the operation of a public airport or of a particular type of airplane at that airport, when both the airport and airplanes have been operated in accordance with federal statutes regulations.

* * *

". . . assuming that the court has the power, it would be manifestly inequitable to exercise it. The right of the public to travel by air by means of modern airplanes far outweighs the disadvantage to the relatively few persons, such as these plaintiffs, who are adversely affected to some extent. I see no need to expand upon this proposition, which to my mind is self-evident. Injunctive relief must be denied." (p. 30)

The U.S. Court of Appeals for the Second Circuit, in a case involving the same airport which is the subject of the East Haven case, supra, granted a preliminary injunction restraining the enforcement of a state court's order closing a part of a municipal airport runway and thus interfering with federal regulation of navigable airspace. United States of America v. City of New Haven, 447 F.2d 972 (1971), 11 CCH Aviation Cases, 18,324.The court stated:

"The matter to be litigated below represents basically a conflict between the Connecticut court interpretation that its statute governs the acquisition of clear zones thus controlling overflights in East Haven and the position of the United States that the clear zones embrace navigable air space which are which the sole jurisdiction of the federal government. Under the Federal Aviation Act of 1958 (49 U.S.C. § 1301 et seq. as amended) the United States has asserted that it possesses and exercises 'complete and exclusive national sovereignty in the air space of the United States.' 49 U.S.C. § 1508 (a). It defines navigable air space to include 'air space needed to insure safety in the take-off and landing of aircraft.' 49 U.S.C. § 1301 (24). State legislation purporting to deny access to navigable air space would therefore constitute a forbidden exertion of the power which the federal government has asserted. American Airlines, Inc. v. Town of Hempstead [10 Avi. 17, 337], 272 F. Supp. 226 (E.D. N.Y. 1967), aff'd [10 Avi. 18,029], 398 F.2d 369 (2d Cir. 1968), cert. denied, 393 U.S. 1017 (1969).

* * *

"In balancing the equities it is clear that the interference created by the state court's order closing a part of the runway and thus halting jet service constitutes an [3 ELR 20189] irreparable public injury and interference with the commercial use of navigable air space. With respect to the equities of the individual plaintiffs it should be noted that some of them at least have already succeeded in establishing their right to recover damages for the taking of an easement by reason of overflights in air space above their property. Town of East Haven v. Eastern Airlines, Inc. [11 Avi. 18, 289] Civil No. 12175 (D.Conn. filed July 31, 1971)."

The reason for the necessity of federal preemption over local interests in the area of air transportation is set forth by the Burbank court, at pages 1986-1987, to-wit:

"Pursuant to this statutory scheme, the Administrator of the FAA must balance considerations of safety, efficiency, technological progress, common defense and environmental protection in the process of formulating rules and regulations with respect to the use of the nation's airspace. There is no single objective to which he must address himself, but a complex of goals which may individually lobby for inconsistent results in a given circumstance. Congress has vested the federal agency with the responsibility and concomitant authority to resolve the proper balance among the multiple purposes. If State and local governments were allowed to exercise supplementary power in this area, they might conceivably be over-protective of one of the multiple values and upset the delicate balance struck by the FAA under the aegis of federal law."

The special use condition limiting the gross weight of aircraft using Pal-Waukee to 60,000 pounds is not related to any public health objectives, endangers air travel and, therefore, surface users, contravenes national and state policy, is inimical to the national defense and violates the due process clauses of the Illinois and United States Constitutions, Boone Landfill, Inc. v. Boone County, 51 Ill.2d 538. For these reasons, condition (2), as interpreted by the COUNTY OF COOK so as to place a limit on the gross weight of aircraft, is unconstitutional.

25. That the defendants and counter-plaintiffs are not barred or precluded from attacking the constitutionality of the conditions imposed on special uses set forth in the ordinance passed by the COUNTY OF COOK. The COUNTY OF COOK in its closing argument argues that defendants and counter-plaintiffs are estopped from attacking the validity of the conditions imposed on the special use, and that their remedy is through the legislative process. It should be noted that this defense was not raised in the COUNTY's Answer to the Counterclaim for Declaration of Rights filed herein. This argument seems to translate to the proposition that a petitioner for a special use must accept any condition imposed upon his property by the local government regardless of the legality of said condition. This proposition is compatible with a government of men and not to a government of laws. It is wholly alien to a constitutional form of government. As the court in LaSalle National Bank v. City of Evanston, 24 Ill.2d 59, held:

"A zoning ordinance cannot be sustained if in violation of the constitution, no matter how long or by whom it has been recognized as legal, and the fact that the purchaser or his grantor may have acquiesced in the classification will not estop him from testing its validity. (Trust Co. of Chicago v. City of Chicago, 408 Ill. 91)."

In the recent case of Boone Landfill, Inc. v. Boone County, 51 Ill.2d 538, the Supreme Court struck down a county ordinance which listed sanitary landfills among the special uses permitted in agricultural districts, but prohibited refuse from outside the county from being deposited therein. It should be noted that the plaintiff was the owner of a landfill.

A similar result was reached in the case of Soho Park & Land Co. v. Board of Adjustment of Town of Belleville, New Jersey Sup. Ct., 142 A. 548 (1928), which considered the issue of whether or not a property owner could attack a condition imposed on a special use. The court held:

"It would seem upon first thought that the prosecutor was not entitled to the relief which it seeks, and that it would have to take the permit with the conditions imposed. Upon further consideration, however, we have reached the conclusion that this court has the power to exscind such conditions from the order as we think unreasonable."

In Wolbach v. Zoning Board of Appeals of Chicago, 82 Ill. App.2d 288, the court sustained the granting of a special use permit issued by the Zoning Board of Appeals even though the condition pertaining to off-street parking was found to be vague and indefinite.

The doctrine of exhaustion of local remedies as set forth in Bright v. City of Evansion, 10 Ill.2d 178, is inapplicable. The COUNTY and the VILLAGE OF WHEELING have argued that the Airport should be compelled to reappear before the Zoning Board of Appeals to modify the condition. This argument ignores the fact that the COUNTY filed the present action. The case of County ofLake v. MacNeal, 24 Ill.2d 253 (1962), holds that when a governmental agency initiates an action to enforce a zoning ordinance, the defendant property owner may attack the constitutionality of the ordinance without first exhausting available local remedies. The Court stated:

"There is at the same time the sound principle, based upon the assumption that one may not be held civilly or criminally liable for violating an invalid ordinance, that a proceeding for the violation of a municipal regulation is subject to any defense which will exonerate the defendant from liability, including a defense of the invalidity of the ordinance. . . .

"For our part, we believe there are substantial differences between a property owner who is the moving party in an action to declare an ordinance invalid as to his property, and one who is summoned into court and charged with illegally violating the ordinance. Whereas, in the first instance, it is the view that zoning litigation should not be initiated until the local authority has a chance to correct the errors that may have occurred in broad comprehensive ordinances, in the latter instance the very act of filing a complaint reflects a judgment on the part of the local authority that, as to the property concerned, they see no particular hardship and no necessity to correct the zoning regulation. To compel a property owner to first seek local relief in the face of the demonstrated attitude of local authority, would be a patently useless step which would increase costs, promote circuity of action and delay the administration of justice. So long as local authorities institute an action, a defendant should be entitled to defend on the ground of the invalidity of the oridnance and to have the issue determined. If it were to be otherwise, the result could be that judicial machinery would be used to enforce an ordinance that is unconstitutional." (p. 260-261)

It is further intimated that the Airport should be barred under the doctrine of clean hands. From the evidence presented in this case, the court could infer that the Airport owners knew that the limitation pertaining to weight was enacted to limit the weight of aircraft using the facility.However, an admitted violation of an ordinance does not preclude a property owner from challenging the validity of the ordinance, Hedrich v. Kane County, 117 Ill. App.2d 169; County of Cook v. Hoytt, 59 Ill. App.2d 368; St. James Temple v. Board of Appeals, 100 Ill. App.2d 302. (Estoppel does not apply.) In fact, in the case of City of Evanston v. Robbins, 117 Ill. App.2d 278 (1969), the court applied the doctrine of estoppel against the governmental agency where the purported zoning violation caused little, if any, detriment to the public interest. The court would not enjoin the violation because of the dubious advantage to the public as measured against the irreparable harm that would be suffered by the property owner.

Since the COUNTY OF COOK is the moving party in the instant litigation, the Airport may assert any and all appropriate defenses to the action including the raising of constitutional questions.

26. That relative to the Amended Complaint filed by the COUNTY OF COOK, the equities are for the defendants and against the plaintiff COUNTY OF COOK. The Court further finds, relative to the Counter-Complaint for a Declaration of [3 ELR 20190] Rights filed herein, that the equities are for the defendants and counter-plaintiffs and against the plaintiffs and counter-defendants.

In shaping the Decree, this Court must consider the interests of both the Airport owners and persons residing within the immediate area of the Airport. The Court is most persuaded by the rationale expressed by the Chancellor in the Morristown case, which applied traditional equitable concepts to the modern age of jet aircraft.

In Township of Hanover v. Town of Morristown, 261 A.2d 692 (1969), 108 N.J. Super. 461, an opinion by a New Jersey Chancellor which in learned fashion concerns itself primarily with whether there may be permissible restraints in aviation cases where the courts of New Jersey have the power to act, the learned Chancellor expressed the view that "The vindication of legal or equitable rights of the municipalities and their residents may be secured wholly or partially without crossing into the forbidden area of the federal preserve." 261 A.2d at 702. The Chancellor further stated:

"No part of any court decree should jeopardize flight safety. This would also apply to noise abatement procedure in flight in the vicinity of the airport."

He rationalized the granting of junctive relief as follows:

"Where as here, public welfare and public interest attach to the respective adversary positions, it is peculiarly appropriate to find some means of accommodating both. It is concluded that benefits can be secured to each without destroying the legitimate interests of the other. The decision to grant or to injunctive relief is only one aspect of equitable discretion. Within very broad limits, the court is free to adjust the interests of the plaintiffs, the defendants and the public by devising an individually tailored remedy to fit the particular case." 261 A.2d at 705.

The Illinois courts have followed the same philosophy. In the case of Talarico v. Cook County, 2 Ill. App.3rd 47, which involved an application for a special use, the court imposed equitable conditions on the use with a view toward protecting the public welfare. The court stated:

"It is axiomatic that every owner has a right to use his property in his own way, subject only to the restraint necessary to secure the common welfare. (Village of LaGrange v. Leitch, 377 Ill. 99; Columbus Park Congregation v. Board of Appeals, 25 Ill.2d 65.) We believe that the statutory standards and the restrictions imposed by the trial judge are sufficient to protect the public's interest." (p. 51)

Applying the above principles to the instant case, we find from the evidence that the BAC-111, an aircraft weighting approximately 79,000 pounds at the time of take off, has safely operated from the Airport for a substantial period of time without causing harm to persons proximate to the Airport. Therefore, it is our opinion that general aviation aircraft comparable in size to the BAC-111 should be permitted to operate from the Airport.

Because of rapid advances being made in aircraft design characteristics, the Court will retain jurisdiction to modify this Decree if and when a change of condition so warrants. Relevant conditions would include the development and use of larger aircraft, the needs of the general public relative to air transportation, and the effect of the flight operations upon the residents of the community.

IT IS THEREFORE ORDERED, ADJUDGEDAND DECREED:

1. That the Amended Complaint filed by the COUNTY OF COOK is hereby dismissed and judgment for the defendants entered thereon.

2. That the Zoning Ordinance of the County of Cook, as applied to the subject property, to the extent that it attempts to regulate flight patterns at Pal-Waukee Airport, is hereby declared null and void.

3. That the Zoning Ordinance of the County of Cook, as applied to the subject property, to the extent that it restricts the weight of aircraft using the facilities at Pal-Waukee Airport, is hereby declared null and void.

4. That the defendants, and all persons claiming by, through and under them, their successors and assigns, shall not permit aircraft in excess of 80,000 pounds maximum gross weight at the time of take off and landing, under regular use to use Pal-Waukee Airport. This limitation shall not apply to emergency situations or to those situations when the Federal Aviation Administration diverts aircraft from O'Hare International Airport to Pal-Waukee Airport. All aircraft shall be subject to the applicable rules and regulations adopted by the Government of the United States or its agencies pertinent thereto:

5. That the defendants shall be permitted to remodel and, if need be, strengthen and reinforce the existing NNW/SSE runway and its appurtenances to the extent required by public safety and necessity; provided that the said remodeling, strengthening and reinforcement, if any, shall conform to all other relevant provisions of the Building Code of the COUNTY OF COOK.

6. That the defendants and all persons claiming by, through and under them, their successors and assigns, shall have the right to the full use and enjoyment of the existing pavement constituting the 5,000 foot NNW/SSE runway, together with its appurtenances, and provided further that any alterations of the markings upon said runway or its appurtenances, or the remodeling, relocating, or installing of safety equipment, devices, structures or signals, commonly associated with airport or aviation uses, shall be permitted subject to the applicable rules and regulations adopted by the Government of the United States or its agencies pertinent thereto.

7. That a permanent injunction issue against the plaintiff, COUNTY OF COOK, restraining it and its officers, agents, and servants, from in any manner enforcing or attempting to enforce said ordinance against the defendants, their successors or assigns, or any persons claiming through them, or from any other ordinance which may hereafter be passed of such nature as to purport to limit or restrict the weight of aircraft using Pal-Waukee Airport, or to restrict or purport to establish flight patterns for aircraft using the subject property, or to restrict or interfere with the length of the pavement known as the NNW/SSE runway, together with its appurtenances.

8. That this Court expressly retains jurisdiction of the parties hereto and the subject matter hereof for the purpose of enforcing the provisions of this Decree.