Real Estate & Property Law

"Now, What's The Use Of Having A Religion, If When You're Dead Your Troubles Never Cease..."

By Robert Thomas

Hat tip: the Clancy Brothers' "They're Moving Father's Grave to Build a Sewer" (via Gideon Kanner). As we noted in our earlier post, life has imitated art: Chicago is seeking to take cemetery and move the graves in order to expand O'Hare airport.

As reported here ("High court ducks battle between O'Hare, cemetery), the saga now appears to have ended. The Illinois Supreme Court has denied review of the court of appeals' September 2010 decision allowing the condemnation.

The court of appeals concluded that the claims of the living relatives of the residents of St. Johannes Cemetery were adjudicated in federal court when the district court dismissed their complaint for failure to state a claim and the Seventh Circuit affirmed. Thus, their subsequent claims in state court were res judicata (that means "issue preclusion" to you young 'uns).

Here, all claims, both federal and state, clearly arose from a single group of operative facts: the City's condemnation of St. Johannes Cemetery as part of the O'Hare expansion plan. Although the state constitutional claims were not raised in the federal case, they could have been.

Slip op. at 8-9. The court concluded that the plaintiffs who brought the federal action were the "virtual representatives" of the different parties who participated in the state court action. The court also rejected the claim the taking of the cemetery was not necessary to the expansion of the runway: 

This argument misses the point. The issue of necessity is not a question of whether it is necessary to use each parcel of land specifically for the exact purpose originally planned, nor is it a question of whether the planned use could be reconfigured such that a particular parcel would no longer be required for the project. These are questions of a technical nature that are not appropriate for judicial review. The issue of necessity relates to whether the airport expansion is a legitimate public necessity.

Judicial interference in the actual plan to be implemented would lead to interminable delays, as there is always a different way to configure the use of land, especially a plan as massive as the expansion of an airport. Even if the overall expansion plan has changed such that the planned runway could be built on land other than the cemetery land, the fact remains that the runway is planned to be built there, and the trial court would have no authority to scuttle the plan or require the City to redraw the plan to place the runway elsewhere. We agree that alternate plans and the City's ability to pay were not relevant issues in the trial court.

Slip op. at 15. Yes, they really are moving father's grave.

Full post as published by inversecondemnation on January 27, 2011 (boomark / email).