Opposition Brief — Bieneman v. Chicago

No. 88-1497 | 2) : | Supreme Court, U.S.

. enaleel 1. ae

_ H}. APR 11 1989

Supreme Court of the United Stategscou ¢. seaniot, J

October Term, 1988 i | ver oil

LAWRENCE C. BIENEMAN,

Vv. Petitioner,

THE CITY OF CHICAGO; EUGENE SAWYER, in his official capac-

ity as Acting Mayor of the City of Chicago, HOWARD STANBACK,

in his official capacity as Cc mmissioner of the rtment of Avia-

tion of the City of Chicago; AMERICAN , INC.; DELTA

AIRLINES, INC.; NO’ AIRLINES, INC.; OZARK AIR-

LINES, INC.; TRANS WORLD AIRLINES, INC.; UNITED AIR

LINES, INC.; and USAIRLINES, INC.,

Respondents.

é

-_

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals For The Seventh Circuit

,%

4

BRIEF IN OPPOSITION FOR CITY RESPONDENTS

+.

vw

Jupson H. Miner, MicHaseLt M. Conway*

Corporation Counsel JEREMIAH MARSH

MartTHEWw J. Piers, MICHAEL SCHNEIDERMAN

Deputy Corporation Counsel Wruuiam J. McKENNA, Jr.

RutH M. Moscovircu James D. Ossyra

Chief Assistant Corporation CuristopHeR W. Z1BART

Counsel, Appeals Division Hopkins & SuTTER

City Hall Three First National Plaza

Room 511 Suite 4100

Chicago, Illinois 60602 Chicago, Illinois 60602

(312) 744-6900 (312) 558-6742

Mark E. Jongs

MrrcHett WARE

Josre M. Facianes

Tones, WARE & GRENARD

180 North LaSalle Street, Suite 800

Chicago, Illinois

(312) 263-4882 *Counsel of Record

Attorneys for Respondents The City of Chicago; Eugene Sawyer,

in his official capacity as Acting Mayor of the City of Chicago;

and Howard Stanback, in his official capacity as Commissioner of

the Department of Aviation of the City of Chicago

COCKLE LAW BRIEF PRINTING CO, (800)

OR CALL COLLECT (402) 342-2831

»

a

he

=

QUESTIONS PRESENTED

1. Where a municipality allegedly destroys the

value of real property and the owner sues for just com-

pensation, does Wilson v. Garcia, 471 U.S. 261 (1985),

uniformly compel application of the state’s personal

injury statute of limitations governing actions under 42

U.S.C. § 1983 when the owner sues directly under the

Fourteenth Amendment?

2. Alternatively, if Wilson is not applied and a fed-

eral court borrows the most analogous state limitations

period, which of three possible Illinois statutes of limita-

tions applies to an alleged taking without compensation

of a person’s real property by making noise and vibration

near the property: (1) the personal injury statute (two

years), (2) the statute for damage to real property (five

years), or (3) the statute for recovery of lands taken by

adverse possession (twenty years)?

il

TABLE OF CONTENTS

Page

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED ....................- 1

REASONS FOR DENYING THE WRIT............. 3

[. ematy OF AMINO. 6 oasis dscbucscecsnaenes 3

Il. Bieneman’s Petition Ignores Settled Federal

LR 6 ckcse Seveaenddcuaeeaksenda wat easeeeeeee 4

A. Bieneman’s Argument Is Foreclosed by the

Recent Decisions of this Court........... +

B. There Is No Conflict Among the Circuits 9

III. Bieneman’s Invocation of the Twenty- Year Stat-

Whe WO BERNIE oi sos occ ksaee eee 11

BV. GONOIIOE, 6 odio se adeueseee 18

ili

TABLE OF AUTHORITIES

Page

CasEs

Adams v. Woods, 6 U.S. (2 Cranch) 336 (1805)......... 8

Bauske v. City of Des Plaines, 13 Ill. 2d 169, 148

a avec baasacssenesssaccsccsecceces 9

Bivens v. Six Unknown Agents of Federal Bureau of

os) 10

California v. Ciraolo, 476 U.S. 207 (1986) ............. 16

Chicago & Eastern Illinois Railroad Co. v. McAuley,

Seem We OS Wes OP CEORT). 0c... 2.0 5.005000- 13, 17

Chin v. Bowen, 833 F.2d 21 (2nd Cir. 1987)......... 9, 10

Department of Transportation v. Rasmussen, 108 Ill.

App. 3d 615, 439 N.E.2d 48 (2d Dist. 1982) ....... 12

DiSanto v. City of Warrenville, 59 Ill. App. 3d 931,

ee) 14

Don Roth Development Co., Inc. v. Missouri Highway

and Transportation Commission, 668 S.W.2d 177

cS seis seed bess eecsvceeseees 15

First Evangelical Lutheran Church v. County of Los

re 8

Fiera ©. Baey, 109 S. Ct. 693 (1989) ................ 16

Goodman v. Lukens Steel Company, 482 U.S. 656

ee ede cacy see s4esyceccyaescens 4, 6

Griggs v. Allegheny County, 369 U.S. 84 (1962) ....... 17

Horn v. City of Chicago, 403 Ill. 549, 87 N.E.2d 642

(1949), cert. denied, 338 U.S. 940 (1950)......... 12, 1

iv

TABLE OF AUTHORITIES - Continued

Page

Kurtz v. County of Logan, 158 Ill. App. 3d 715, 511

N.E.2d 252 (4th Dist.), appeal denied, 117 Ill. 2d

DOA, SUF PA.G.Be TRF CIP dik csc ccccdccscccecesss 14

Lake Country Estates v. Tahoe Planning Agency, 440

th Rt, Perey rere rrr rT Terre rer rrr Terr re 8

McAllister v. Magnolia Petroleum Co., 357 U.S. 221

ii rere rr reer rer rere erry rrr rer rer ee 8

McSurely v. Hutchinson, 823 F.2d 1002 (6th Cir.

1987), cert. denied, 108 S. Ct. 1107 (1988)........ 9, 10

Owens v. Okure, 109 S$. Ct. 573 (1989). .........5..5. 4,7

People ex rel. Markgraff v. Rosenfield, 383 Ill. 468, 50

te Ee Serr ererer oT Tere rere Terres 14

Perona v. Illini Harbor Services, Inc., 130 Ill. App. 3d

984, 474 N.E.2d 1270 (3d Dist. 1985).............. 16

Prendergast v. Park Authority, 227 Va. 190, 313

Ree ie NO 6 is nk hened Fen oe EN Sas epee Rea sens 14

Ranch 57 v. City of Yuma, 152 Ariz. 218, 731 P.2d .

113 (Aris. Ch App. WRG) oa cscs cc ccthscanescies 14

State of Illinois ex rel Scott v. Butterfield, No. 74 C

po a | Peer ree i eee reer re rer Tre tee 9

Suburban O’Hare Comm'n v. Dole, 787 F.2d 186 (7th

Cir.), cert. denied, 479 US. S47 (1986)... ..... 0. 5cc0e. 9

Tompkins v. Village of Tinley Park, 566 F. Supp. 70

Fo ere Tere rrr er TT Peer ere ee 15

United States v. Causby, 328 U.S. 256 (1946)....... 15, 16

United States v. General Motors Corp., 323 U.S. 373

er reer re err gun, renee Tree Baer 15

TABLE OF AUTHORITIES —- Continued

Page

Wilson v. Garcia, 471 U.S. 261 (1985)............. passim

CONSTITUTIONS

United States Constitution, Amendment V....4, 5, 8, 15

United States Constitution, Amendment XIV .... passim

Illinois Constitution of 1670. .......... ccs ccsccsccess 13

Illinois Constitution of 1970, Art. I, § 15......... 12, 15

STATUTES AND REGULATIONS

ee ee ee | eer 12

I. Bev. Stat. cm. FIG, & SOO. 2 oo ccc iess a 12

Re ee ee. Cia 5 5K ee Eee 2, 16

Re SE CE aS onde on boa teu he ee ee ae 6, 7

Oe Be a nk oa ow Reece econ ans 3, o: o> oe

FP Alene RE oo cis aweka kee eViee eee 2, 16

mE PE OR re ee ee be ts” 2, 16

Oe ee PD 6555 hncacaak an bee ceeenaes 2, 16

OTHER

Aircraft Noise Problems: Hearings before the Subcom-

mittee on Transportation and Aeronautics of the

House Committee on Interstate and Foreign Com-

oe Ee Perr rere 8

Helman and Whalen, Constitutional Commentary,

Smith-Hurd, Illinois Constitution of 1970, Art. I,

DE 5 os kaha es sdpanwedaeteaipeuegiesekiise xs 13

Noise Pollution: Hearings on S. 1016, S. 3342 and

H.R. 11021 before the Subcommittee on Air and

Water Pollution of the Senate Committee on Public

Worms, 32a Come. 20 Seen: C1972) 6... occ ccc ences 9

No. 88-1497

>

vy

In The

Supreme Court of the United States

October Term, 1988

,%

of

LAWRENCE C. BIENEMAN,

Petitioner,

THE CITY OF CHICAGO; EUGENE SAWYER, in his official capac-

ity as Acting Mayor of the City of Chicago, HOWARD STAN-

BACK, in his official capacity as Commissioner of the Department

of Aviation of the City of Chicago; AMERICAN AIRLINES, INC.;

DELTA AIRLINES, INC.; NORTHWEST AIRLINES, INC.; OZARK

AIRLINES, INC.; TRANS WORLD AIRLINES, INC.; UNITED AIR

LINES, INC.; and USAIRLINES, INC.,

Respondents.

&

_

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

a

w

BRIEF IN OPPOSITION FOR CITY RESPONDENTS

,%

4

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

In addition to the provisions cited by Petitioner Law-

rence C. Bieneman (“Bieneman”), the following constitu-

tional provisions and statutes are involved:

1. Section 1 of the Fourteenth Amendment to the

United States Constitution, which provides in relevant

part: “nor shall any State deprive any person of life,

liberty, or property, without due process of law.”

2. The Illinois statute of limitations for, inter alia,

injury to real property: “actions . . . to recover damages

for an injury done to property, real or personal .. . shall

be commenced within 5 years next after the cause of

action accrued.” Ill. Rev. Stat. ch. 110, § 13-205.

3. 49 US.C. § 1301(29): “ ‘Navigable airspace’

means airspace above the minimum altitudes of flight

prescribed by regulations issued under this chapter, and

shall include airspace needed to insure safety in take-off

and landing of aircraft.”

4. 49 U.S.C. § 1304: “There is recognized and

declared to exist in behalf of any citizen of the United

States a public right of freedom of transit through the

navigable airspace of the United States. .. .”

5. 49 U.S.C. § 1508(a): “The United States of Amer-

ica is declared to possess and exercise complete and

exclusive national sovereignty in the airspace of the

United States, including the airspace above all inland

waters and the airspace above those portions of the adja-

cent marginal high seas, bays, and lakes, over which by

international law or treaty or convention the United

States exercises national jurisdiction. . . .”

6. 14 CFR. § 91.79(a)-(c): “Except when necessary

for takeoff or landing, no person may operate an aircraft

below the following altitudes:

(a) Anywhere. An altitude allowing, if a power

unit fails, an emergency landing without undue haz-

ard to persons or property on the surface.

(b) Over congested areas. Over any congested

area of a city, town, or settlement, or over any open

air assembly of persons, an altitude of 1,000 feet

above the highest obstacle within a horizontal radius

of 2,000 feet of the aircraft.

(c) Over other than congested areas. An altitude of

500 feet above the surface except over open water or

sparsely populated areas. In that case, the aircraft

may not be operated closer than 500 feet to any

person, vessel, vehicle, or structure.

~

—_

REASONS FOR DENYING THE WRIT

i. Summary of Argument

In this petition, Bieneman asks this Court to subvert

the rule in Wilson v. Garcia, 471 U.S. 261 (1985), providing

for a uniform limitations period for claims enforcing

rights secured by the Fourteenth Amendment. By argu-

ing that direct constitutional actions should be controlled

by different limitations periods than actions brought pur-

suant to 42 U.S.C. § 1983, Bieneman would reopen the

fruitless search to borrow specific - and varying -

limitations periods depending upon the characterization

given the underlying constitutional claim asserted. This

runs counter to this Court’s recent reaffirmation that the

federal courts should subject Fourteenth Amendment

causes of action to a single statute of limitations in each

State.

1 Petitioner Bieneman has sought issuance of a writ of

certiorari as to only one of the several issues resolved adver-

sely to him by the court of appeals: the judgment that his claim

for inverse condemnation (Count III) is barred by the applica-

ble statute of limitations.

NE eM ae ON

Bieneman has no support in the appellate courts for

this approach. There is no conflict among the circuit

courts of appeals here: three circuits have decided the

issue directly, and all three are in agreement that the

Wilson test applies to direct constitutional claims.

Even if Bieneman were to succeed in overturning

Wilson, his claim - eight years old at the time of the

complaint — would still be time-barred. The most closely

analogous state statute of limitations to Bieneman’s fed-

eral claim is Illinois’ five-year limitations period for

injury to real property.

II. Bieneman’s Petition Ignores Settled Federal Law

A. Bieneman’s Argument Is Foreclosed by the

Recent Decisions of this Court

Bieneman argues that, in the case of actions brought

directly under the Fourteenth Amendment to the United

States Constitution,? the Court should investigate the par-

ticular cause of action and choose an analogous state

statute of limitations. Bieneman is asking this Court to

reconsider the holding and rationale of Wilson v. Garcia,

471 U.S. 261 (1985), as explained and reinforced in Good-

man v. Lukens Steel Company, 482 U.S. 656 (1987), and

again this year in Owens v. Okure, 109 S. Ct. 573 (1989).

2 Bieneman in his Petition declares in this Court that his

action is brought “directly under the Fifth Amendment.” Actu-

ally, to the extent that the case is brought directly under the

Constitution, it would be under the Fourteenth Amendment,

which applies to the States. See note 5, infra. Bieneman’s

Amended Complaint bears this out. (A-55 at 7 1; A-69 at {| 23).

In Wilson, the Court established a uniform method

for borrowing statutes of limitations for actions brought

pursuant to 42 U.S.C. § 1983, which creates a cause of

action for violations of constitutional rights under color

of state law. In particular, the Wilson plaintiffs alleged

violations of the Fourth, Fifth and Fourteenth Amend-

ments. The Court recognized the wide variety of claims

which could be brought under these constitutional provi-

sions, and the resulting uncertainty in requiring a case by

case search for an analogous state statute of limitations.

471 U.S. at 273-74. In light of the “federal interests in

uniformity, certainty, and the minimization of unnecess-

ary litigation,” the Court held that one statute of limita-

tions should apply to all § 1983 causes of action. Id. at

275. The Court found that to be the relevant state limita-

tions period applicable to tort actions for personal

injuries.

Bieneman’s contention that Wilson has nothing to do

with his Fourteenth Amendment case is disproved by the

Wilson opinion itself. The Court emphasized that the stat-

utory provision, § 1983, creates no substantive rights, but

3 Section 1983 reads as follows: “Be it enacted by the Senate

and House of Representatives of the United States of America in

Congress assembled, That any person who, under color of any

law, statute, ordinance, regulation, custom, or usage of any

State, shall subject, or cause to be subjected, any person within

the jurisdiction of the United States to the deprivation of any

rights, privileges, or immunities secured by the Constitution of

the United States, shall, any such law, statute, ordinance, regu-

lation, custom, or usage of the State to the contrary notwith-

standing, be liable to the party injured in any action at law, suit

in equity, or other proper proceeding for redress. .. .” 17 Stat.

13.

rather a remedy. Id. at 278. The substantive rights are

created by the Fourteenth Amendment itself. The Court

explicitly analyzed the language of the Fourteenth

Amendment, and found it to be consistent with a uniform

personal injury statute of limitations:

The unifying theme of the Civil Rights Act of 1871 is

reflected in the language of the Fourteenth Amend-

ment that unequivocally recognizes the equal status

of every “person” subject to the jurisdiction of any of

the several States. The Constitution’s command is

that all “persons” shall be accorded the fuil privileges

of citizenship; no person shall be deprived of life,

liberty, or property without due process of law or be

denied the equal protection of the laws. A violation

of that command is an injury to the individual rights

of the person.

Id. at 277 (emphasis by the Court; footnote omitted). The

clear holding of Wilson is that suits for violations of the

Fourteenth Amendment are subject to the state personal

injury limitations period.

Indeed, this Court has applied the Wilson holding to

more situations than simply § 1983. In Goodman v. Lukens

Steel, 482 U.S. 656, 107 S. Ct. 2617 (1987), the plaintiffs

brought suit under 42 U.S.C. § 1981,4 alleging racial dis-

crimination against their right to make and enforce con-

tracts. The Court held that § 1981, though it deals in part

4 Section 1981 reads as follows: “All persons within the

jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts, to sue,

be parties, give evidence, and to the full and equal benefit of

all laws and proceedings for the security of persons and prop-

erty as is enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses and exactions of

every kind, and to no other.”

with contracts, specifically protects personal rights. 107 S.

Ct. at 2621. The Court found that since § 1981 and § 1983

overlap to some degree, Wilson’s consistent limitations

period would be “equally appropriate here.” Id. Accor-

dingly, the Court held that the state limitations period

applying to personal injuries, not breaches of contract,

was proper for § 1981. Id.

Most recently, the Court explained how to apply

Wilson where the appropriate state has more than one

statute of limitations for personal injury causes of action.

In Owens v. Okure, 109 S. Ct. 573 (1989), the plaintiffs’

alleged intentional beatings and misconduct by the

police. The choice was between a statute of limitations

applying to intentional torts, and one applying to general

personal injuries not covered by specific statutes of lim-

itations. The Court ruled that federal courts should not

pick and choose among possible limitations periods

based on the nature of the allegations; a single state

limitations period —- drawn from the state’s personal

injury tert statute of limitations - should control all

§ 1983 claims. 109 S. Ct. at 578-79.

In light of these three recent precedents, Bieneman

may not validly argue that, while federal courts cannot

choose a limitations period for violation of Fourteenth

Amendment rights brought through § 1983 by examining

the particular allegations to uncover an analogy, federal

courts can and should regress to such a confusing anal-

ysis for alleged violations of the Fourteenth Amendment

brought directly under the constitutional provision itself.

Not only would such a rule require an abandonment of

the Wilson rationale, but it would foster a new problem:

actions for violations of the Fourteenth Amendment

would often have two different limitations periods,

depending on whether the action was pled as a statutory

§ 1983 action or a direct constitutional action. Cf.

McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 225-26

(1958) (same statute of limitations should be applied to

Jones Act claim and general maritime law claim in view

of “practical necessity of combining both claims in a

single action.”)

Furthermore, application of the two year personal

injury statute of limitations in this case would serve

federal interests. As this Court stated in Wilson, “[a]

federal cause of action ‘brought at any distance of time’

would be ‘utterly repugnant to the genius of our laws’.”

471 US. at 271, quoting Adams v. Woods, 6 U.S. (2 Cranch)

336, 341 (1805). Bieneman and numerous other suburban

officials and residents have been fully aware of O’Hare’s

noise levels and aircraft operations for many years. See

Aircraft Noise Problems: Hearings before the Subcommittee on

Transportation and Aeronautics of the House Committee on

Interstate and Foreign Commerce, 87th Cong. (1962);

5 Indeed, Bieneman’s Amended Complaint is less than

crystal clear on this point. In the jurisdictional section of the

Amended Complaint (A-55 at ¥ 1), explicitly incorporated by

reference into Count III of the Amended Complaint alleging an

inverse condemnation, Bieneman cites both the Fourteenth

Amendment and § 1983. (A-55, 68). Bieneman could bring his

inverse condemnation claim through 42 U.S.C. § 1983, Lake

Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 399-400

(1979), or directly under the Fourteenth Amendment, through

which the Fifth Amendment is applicable to the States. First

Evangelical Lutheran Church v. County of Los Angeles, 482 U.S.

304, 107 S. Ct. 2378, 2383, 2386 n.9 (1987). Apparently, Biene-

man now claims to do the latter. (Bieneman’s Petition at 3, n.2).

Noise Pollution: Hearings on S. 1016, S. 3342 and H.R.

11021 before the Subcommittee on Air and Water Pollu-

tion of the Senate Committee on Public Works, 92d Cong.

2d Sess. (1972); Suburban O’Hare Comm'n v. Dole, 787 F.2d

186, 187-88 (7th Cir.), cert. denied, 479 U.S. 847 (1986);¢

State of Illinois ex rel Scott v. Butterfield, No. 74 C 2440

(N.D. Ill. 1974);7 Bauske v. City of Des Plaines, 13 Ill. 2d 169,

148 N.E.2d 584 (1957).

Indeed, Bieneman purchased his home in 1967 (A-55

at ¥ 4) when O’Hare was already the busiest airport in

the world. Application of the twenty-year adverse pos-

session statute advocated by Bieneman instead of the

two-year personal injury statute would require the City

to defend against stale claims.

B. There Is No Conflict Among the Circuits

Bieneman fails to mention in his petition that, with

its decision below, the Seventh Circuit joins two other

federal circuits which have held that direct constitutional

actions are governed by the state personal injury statute

of limitations. Chin v. Bowen, 833 F.2d 21 (2nd Cir. 1987);

McSurely v. Hutchinson, 823 F.2d 1002 (6th Cir. 1987), cert.

denied, 108 S. Ct. 1107 (1988). No court of appeals has held

to the contrary.

In both McSurely and Chin, the plaintiff brought an

action against a federal agent for violations of the

6 Bieneman we° a named plaintiff in Suburban, which chal-

lenged an FAA decree approving an airport layout plan for

O’Hare. 787 F.2d at 187 n.1.

7 Bieneman, as Mayor of the City of Bensenville, Illinois,

signed the consent decree in 1982 which ended the Butterfield

case. (A-5 n.1).

10

plaintiff’s constitutional rights, so-called Bivens® actions.

The district courts in each case dismissed the complaints

based on Wilson. In both cases the plaintiffs argued on

appeal that Wilson was grounded in statutory construc-

tion and the legislative history of the Civil Rights Act,

and that direct constitutional actions should have a dif-

ferent rule. McSurely, 823 F.2d at 1004; Chin, 833 F.2d at

23. This is Bieneman’s argument. (Bieneman’s Petition at

15-16). Yet, both the Sixth and Second Circuits rejected

this contention. The McSurely court reasoned that it was

important to have uniformity between direct causes of

action and § 1983 cases, especially since many cases

involve both. 823 F.2d at 1005. The Chin court agreed,

noting that Bivens actions and § 1983 actions are both

designed to provide redress for constitutional violations.

833 F.2d at 24.

The Seventh Circuit’s decision is in complete accord

with these decisions. The Seventh Circuit held:

When the defendant is a state actor, § 1983 and direct

litigation may be interchangeable, the choice between

them adventitious. There is no reason to have a dif-

ferent period of limitations, and a strong reason not

to: any difference would give the plaintiff an incen-

tive to pick whichever jurisdiction provided the

longer period, recreating the uncertainty that the

Supreme Court sought to eliminate. We conclude,

therefore, that there shculd be a single period of

limitations for all suits in which the Constitution

supplies the remedy.

Bieneman, 864 F.2d 463, 469 (also reprinted at A-15).

8 Bivens v. Six Unknown Agents of Federal Bureau of Nar-

cotics, 403 U.S. 388 (1971).

11

The writ is unnecessary here to resolve any split

among the circuits. The three courts of appeals which

have faced this issue have properly followed this Court’s

decision in Wilson and unanimously rejected Bieneman’s

argument.

III. Bieneman’s Invocation of the Twenty-Year Statute

Is Erroneous

Bieneman’s attempt to have this Court revisit Wilson

is not only misguided; it would also be futile. Even if

Bieneman prevailed on his argument to ignore Wilson and

search for a state limitations period analogous to his

particular case, a federal court would have to choose

among three possible statutes of limitations: personal

injury (2 years),? taking of property (20 years) and dam-

age to property (5 years). Because Illinois’ five year lim-

itations period for damage to property is more closely

analogous than the adverse possession statute, Biene-

man’s action would in any case be barred.!°

To select the most analogous state statute of limita-

tions, a federal court must first characterize the nature of

Bieneman’s action. Here, Bieneman has conspicuously

not alleged that the City literally invaded and occupied

his property in order to physically take it. Rather, he

9 Independent of its holding in Wilson that federal courts

should be consistent in borrowing limitations periods, the

Court found that the Fourteenth Amendment protects personal

rights. 471 U.S. at 277. See discussion of Wilson at 6 supra.

10 In light of its decision that Wilson applies here, the court

of appeals below briefly discussed, but did not resolve, this

argument. See A-13.

12

claims that the City damaged his property by alleging

that the City “totally destroyed the value of Plaintiffs’

property as residences” by aircraft operations. (Amended

Complaint, Count II, 7 22; A-69). Bieneman’s express

allegations are best characterized as “an injury done to

property, real or personal” (Ill. Rev. Stat., ch. 110,

§ 13-205) and not “an action for the recovery of lands.”

(Ill. Rev. Stat., ch. 110, § 13-101).

The Illinois Constitution of 1970 in Article I, Section

15 expressly provides two mutually exclusive categories

of inverse condemnation - a taking of property and a

damaging of property. A “taking” under Illinois law is

limited to the case where an actual, physical invasion of

real property by the government occurs. Horn v. City of

Chicago, 403 Ill. 549, 87 N.E.2d 642 (1949), cert. denied, 338

U.S. 940 (1950); Department of Transportation v. Rasmussen,

108 Ill. App. 3d 615, 439 N.E.2d 48 (2d Dist. 1982). Merely

conducting an activity adjacent to a landowner’s prop-

erty which damages the value of the property is not a

“taking” under the Illinois Constitution, but rather is a

“damaging.”

Two Illinois Supreme Court cases illustrate the

impact of this dichotomy on the applicable limitations

period. In Horn v. City cf Chicago, supra, property owners

sued the City of Chicago for construction of a viaduct

which allegedly interfered with and destroyed the prop-

erty owners’ access to light, air, ingress and egress to

buildings adjoining the viaduct. The Supreme Court of

Illinois first noted that no claim for-a taking could be

made in the absence of an actual physical invasion and

occupation of the land. However, a constitutional claim

= 13

for a damaging could arise from the destruction or distur-

bance of easements of light, air, accessibility or other

intangible rights. 403 Ill. at 554-55.11

Next, the supreme court turned to the question of the

applicable statute of limitations to a damaging of prop-

erty without just compensation. The court rejected the 20-

year adverse possession statute asserted here by Biene-

man as the controlling statute, and concluded that the

five-year statute of limitations relating to actions to

recover damages for injury done to real property was

controlling. 403 Ill. at 561.

In Chicago & Eastern Illinois Railroad Co. v. McAuley,

121 Ill. 160, 11 N.E. 67 (1887), the Supreme Court of

Illinois reached a similar result. The plaintiff contended

that the nearby operation of a transportation facility - a

railroad — through vibration, dust, smoke, cinders and

other substances cast upon plaintiff’s dwelling and prem-

ises, materially damaged his property and depreciated its

value. The court concluded that the five-year statute of

limitations governing actions to recover damages for

injury done to property controlled. 121 Ill. at 168-69. It

found that the statute was not affected by the continuing

nature of the railroad’s operations. 121 Ill. at 165-66.

Because the railroad line was constructed more than five

years prior to the commencement of the action, it found

the entire claim barred by the statute of limitations. See

1 The current Illinois Constitution of 1970 reenacted the

applicable provisions of the 1870 Constitution, in effect at the

time of Horn, relating to constitutional takings and damagings.

See Heiman and Whalen, Constitutional Commentary, Smith-

Hurd Art. I, § 15, at 600-01 (1971).

4

14

also Kurtz v. County of Logan, 158 Ill. App. 3d 715, 511

N.E.2d 252, 254 (4th Dist.), appeal denied, 117 Ill. 2d 544,

517 N.E.2d 1087 (1987) (five-year statute of limitations

governing damage to real property applies to claim

against county for flood damage arising from county’s

construction of a bridge and highway adjacent to plain-

tiff’s property.)12

12 The Illinois’ cases cited by Bieneman (Petition at 11) do

“not dictate a contrary result. Both DiSanto v. City of Warrenville,

59 Ill. App. 3d 931, 376 N.E.2d 288 (2d Dist. 1978), and People ex

rel. Markgraff v. Rosenfield, 383 Ill. 468, 50 N.E.2d 479 (1943),

involved allegations of physical invasion coupled with actual

occupation and adverse use of property. The numerous cases

cited by Bieneman from other jurisdictions do not advance his

statute of limitations argument, either. First, the cases simply

interpret the different limitations periods applicable in a wide

variety of jurisdictions to various types of inverse condemna-

tion actions. They do not constitute a statement of that “local

time limitation” which this Court has contemplated would be

borrowed when Congress has not established a time limitation

for a federal cause of action. Illinois’ particular limitations law

distinguishing between constitutional “takings” and “damag-

ings” of real property constitutes the applicable local limita-

tions law.

Indeed, no monolithic rule of law mandates that the appro-

priate statute of limitations for inverse condemnation claims is

always the statutory limitations period for actions to recover

land under claims of adverse possession. Several state cases

(not cited in Bieneman’s Petiticn) have expressly rejected an

adverse possession limitations statute for inverse condemna-

tion claims. See, e.g., Ranch 57 v. City of Yuma, 152 Ariz. 218, 731

P.2d 113 (Ariz. Ct. App. 1986) (rejecting adverse possession

statute and applying four-year “catch all” limitations statute to

inverse condemnation claim); Prendergast v. Park Authority, 227

Va. 190, 313 S.E.2d 399 (1984) (applying three-year implied

contract statute of limitations to inverse condemnation claim);

(Continued on following page?

eT ae

|

15

The United States Constitution, under which Biene-

man has brought this action, does not distinguish

between what the Illinois Constitution characterizes sep-

arately as “damagings” of property for a public purpose

and “takings” for a public purpose. Rather, what would

be both “damagings” and “takings,” as defined under the

Illinois Constitution of 1970 (Art. I, § 15), are actionable

against a municipality under the Fourteenth Amendment,

incorporating the Fifth Amendment requirement of just

compensation for “takings.” See United States v. Causby,

328 U.S. 256, 260-61 (1946); United States v. General Motors

Corp., 323 U.S. 373, 378 (1945); Tompkins v. Village of Tinley

Park, 566 F. Supp. 70, 75-76 n.5 (N.D. Ill. 1983) (comparing

Illinois and federal rules). Here, Bieneman’s alleged “tak-

ing” under the Fifth Amendment is actually most analo-

gous to an Illinois “damaging” case for the purposes of

choosing a limitations period.

Bieneman insists that his allegation of airflights

“over” his property makes his claim more analogous to

an actual taking supported by the required physical inva-

sion, than a damaging through adjacent operations. (See

Bieneman’s Petition at 13 n.5). The problem with Biene-

man’s contention is that in the context of aircraft opera-

tions, a “taking” for the purposes of Illinois’ statute of

(Continued from previous page)

Don Roth Development Co., Inc. v. Missouri Highway and Trans-

portation Commission, 668 S.W.2d 177 (Mo. Ct. App. 1984)

(applying five-year limitations period, not adverse possession

statute to inverse condemnation claim.)

16

limitations can only occur where aircraft pass directly

through airspace legally owned by a landowner. Biene-

man has not and cannot in good faith allege operation of

aircraft through airspace legally owned by him.

The United States has “complete and exclusive

national sovereignty in the airspace.” 49 U.S.C. § 1508(a).

There exists a “public right of freedom of transit through

the navigable airspace of the United States.” 49 U.S.C.

§ 1304. “Navigable airspace means airspace above the

minimum altitudes of flight prescribed by regulations

issued under this Chapter, which shall include airspace

needed to insure safety in take-off and landing of air-

craft.” 49 U.S.C. § 1301(29). The navigable airspace

extends upwards in congested areas from 1,000 feet above

the highest obstacle in the area and from 500 feet above

the surface otherwise. 14 C.F.R. § 91.79 (1988). In light of

these statutory provisions, it has long been recognized

that a landowner’s legal property interests only extend

upward to the bottom of the federally created navigable

airspace. Above that level is “public highway.” United

States v. Causby, 328 U.S. 256, 261 (1946); cf. Florida v.

Riley, 109 S. Ct. 693, 696-97 (1989) (plurality opinion);

California v. Ciraolo, 476 U.S. 207, 213-14 (1986) (acknowl-

edging that helicopters and fixed-wing aircraft, respec-

tively, were operating in the navigable airspace and

therefore a defendant had no expectation of privacy for

observations of his property made from the aircraft);

Perona v. Illini Harbor Services, Inc., 130 Ill. App. 3d 984,

986, 474 N.E.2d 1270 (3d Dist. 1985) (barge traffic on a

navigable river is not trespass of plaintiff's riverbed

property).

eT

- ——

17

Operations of aircraft within the navigable airspace

occur within the public domain and do not invade Biene-

man’s legally-owned property. So, while Bieneman may

have a federal “taking” claim based on these allegations,

see Griggs v. Allegheny County, 369 U.S. 84 (1962), Biene-

man’s claim is analogous to the landowner’s claim in

Chicago & Eastern Illinois R.R., a “damaging” case as

opposed to a taking case, for the purposes of the Illinois

statute of limitations. As such, even if this Court were to

abandon the uniform rule dictated by Wilson, the most

analogous state limitation period would be the five year

period applicable to damage to property. Under this stat-

ute, Bieneman’s claim in Count III of the Amended Com-

plaint is time barred. (A-68 at J 22).

y

bw

18

IV. CONCLUSION

For these reasons, Bieneman’s petition should be

denied.

Respectfully submitted,

Jupson H. Miner, MicHaAEL M. Conway*

Corporation Counsel JEREMIAH MARSH

MatrHew J. Piers, MICHAEL SCHNEIDERMAN

Deputy Corporation Counsel WitiiaM J. McKENNA, Jr.

RutH M. MoscovitcH James D. Ossyra

Chief Assistant Corporation CHRISTOPHER W. ZIBART

Counsel, Appeals Division Hopkins & SUTTER

City Hall Three First National Plaza

Room 511 Suite 4100

Chicago, Illinois 60602 Chicago, Illinois 60602

(312) 744-6900 (312) 558-6742

Mark E. JONES

MrTcHELL WARE

Josie M. Facianes

Jones, WarRE & GRENARD

180 North LaSalle Street

Suite 800

Chicago, Illinois

(312) 263-4882

Attorneys for Respondents The City of Chicago; Eugene Sawyer,

in his official capacity as Acting Mayor of the City of Chicago;

and Howard Stanback, in his official capacity as Commissioner

of the Department of Aviation of the City of Chicago

Dated: April 11, 1989

*Counsel of Record

2A eat Ae oe

‘<a

se os ag