                                No. 2--10--0131
______________________________________________________________________________

                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE CITY OF CHICAGO,                         ) Appeal from the Circuit Court
                                             ) of Du Page County.
         Plaintiff and Defendant-Appellee,   )
                                             )
v.                                           ) Nos. 07--ED--59
                                             )       09--CH--4483
ST. JOHN'S UNITED CHURCH OF                  )
CHRIST,                                      )
                                             )
         Defendant-Appellant                 )
                                             )
(Clifford A. Sell, Sr., et al., Intervenors- ) Honorable
Appellants; Florence Anderson et al.,        ) Hollis L. Webster,
Plaintiffs-Appellants).                      ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the opinion of the court:

       These cases arise out of the City of Chicago's condemnation of St. Johannes Cemetery,

exercised in the course of expanding O'Hare Airport. In the eminent-domain action, case No. 07--

ED--59, defendant, St. John's United Church of Christ, which owned the cemetery, and several

hundred relatives of those buried at St. Johannes, sought, via a traverse and motion to dismiss, to

prevent the condemnation and destruction of the cemetery. In case No. 09--CH--4483, Florence

Anderson and 67 other individuals with religious and property rights in the graves of ancestors buried

in the cemetery sought injunctive relief to prevent the condemnation. The cases were consolidated

in November 2009. On February 8, 2010, the trial court, having denied or dismissed all challenges
No. 2--10--0131


to the condemnation, granted Chicago's motion for immediate vesting of title under section 20--5--5

of the Eminent Domain Act (Act) (735 ILCS 30/20--5--5 (West 2008)). This appeal followed.

                                                 FACTS

          In July 2002, the City of Chicago (the City) disclosed plans to make changes at O'Hare

International Airport, including construction of runways, additions to or relocation of runways,

construction of new terminals, and construction of ground transportation facilities, ramps, parking,

staging areas, mass transit, clear zones, and other airport-related facilities. The Chicago city council

adopted an ordinance determining that the acquisition of certain properties was necessary and

desirable for the expansion project and authorizing the exercise of the power of eminent domain to

acquire those properties. The City planned to acquire approximately 433 acres of land located in Elk

Grove Village and the Village of Bensenville. St. Johannes Cemetery was included in the list of

properties to be acquired.

          In 2003, the Illinois legislature passed the O'Hare Modernization Act (Modernization Act)

(620 ILCS 65/1 et seq. (West 2004)). Section 15 of the Modernization Act provided, among other

things:

                 "In addition to any other powers that the City may have, and notwithstanding any

          other law to the contrary, the City may acquire *** any right, title, or interest in any private

          property, property held in the name of or belonging to any public body or unit of government,

          or any property devoted to a public use, or any other rights or easements, including any

          property, rights, or easements owned by the State, units of local government, or school

          districts, including forest preserve districts, for purposes related to the O'Hare Modernization

          Program. The powers given to the City under this Section include the power to acquire, by



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        condemnation or otherwise, any property used for cemetery purposes within or outside of the

        City, and to require that the cemetery be removed to a different location." 620 ILCS 65/15

        (West 2004).

The Modernization Act amended various other state acts, including the Religious Freedom

Restoration Act (Religious Freedom Act ) (775 ILCS 35/1 et seq.) (West 2004)), to which was added

section 30:

                  "Nothing in this Act limits the authority of the City of Chicago to exercise its powers

        under the O'Hare Modernization Act for the purposes of relocation of cemeteries or the

        graves located therein." 775 ILCS 35/30 (West 2004).

        Various parties brought suits in various federal courts. St. John's, joined by Helen Runge and

Shirley Steele, filed a suit in the United States District Court for the Northern District of Illinois.1

Among the claims brought by St. John's in its amended complaint were that the City violated its

constitutional rights under the free exercise clause of the first amendment to the United States

Constitution and the equal protection clause of the fourteenth amendment to the United States

Constitution by not demonstrating a compelling governmental interest and use of the least restrictive

mechanism, as was ordinarily required by the Religious Freedom Act. It also alleged violations of

the takings clause of the fifth amendment and the due process clause of the fourteenth amendment.

The federal district court dismissed the first amended complaint for failure to state a claim upon which

relief could be granted and denied leave to file a second amended complaint. The Seventh Circuit




        1
            St. John's also became involved in separate proceedings alleging violations of federal law,

begun in the District of Columbia.

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No. 2--10--0131


Court of Appeals affirmed. See St. John's United Church of Christ v. City of Chicago, 502 F.3d 616

(7th Cir. 2007).

        On October 16, 2007, the City filed complaints for condemnation against various properties,

including St. Johannes cemetery, in case No. 07--ED--59. St. John's filed a traverse and motion to

dismiss on February 1, 2008, alleging, among other things, that the taking of St. Johannes was

unnecessary for the planned expansion of O'Hare and that it would violate the guarantee of free

exercise of religion contained in the Illinois Constitution (Ill. Const. 1970, art. I §3). On June 2,

2008, the trial court ruled that St. John's claim regarding the free exercise of religion was barred by

res judicata. The court also denied St. John's motion to compel additional discovery.

        On June 17, 2008, the City moved the court to appoint a guardian ad litem. The City stated

that it had filed with the complaint an affidavit alleging that certain additional persons may have an

interest in the case; however, the City did not know the identity of these persons. The City had

published a notice of the filing of the condemnation suit once a week for three weeks in the Daily

Herald newspaper and had also filed a lis pendens notice with the recorder of deeds. No person filed

an appearance or contacted the City in response. The City identified persons potentially having an

interest in the case as "pre-need owners" (persons who have purchased rights of interment on a pre-

need basis), living relatives of the deceased buried in St. Johannes, those interred in St. Johannes who

have no living relative, and the interred for whom no living relative has been identified. The City

argued that courts often appoint a guardian ad litem "to represent the interests of persons who are

necessary parties, but who are unknown or unable to represent themselves."

        On August 11, 2008, seven living relatives of persons buried in St. Johannes filed a petition

to intervene, pursuant to section 10--5--75 of the Act (735 ILCS 30/10--5--75 (West 2008)), and a



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No. 2--10--0131


traverse, alleging that the condemnation would violate their right to the free exercise of religion

guaranteed in the Illinois Constitution and that the taking was not necessary. The trial court granted

the petition to intervene on October 2, 2008, but ruled that the intervenors were bound by all prior

court orders, including the May 29, 2008, order in which the court found that the claim regarding the

free exercise of religion was barred under the doctrine of res judicata. When asked if the intervenors

were precluded by res judicata from raising the issue, the trial court responded:

                "I did not say that, Mr. Karaganis. It's the law of the case. It's the law of the case.

       It's the ruling that was made by Judge Killander [sic] where I know what the basis was, but

       the ultimate ruling was what I indicated moments ago.

               St. John's claim of violation of the Illinois constitutional guarantee of the free exercise

       of religion is barred from presentation in this suit; that will go to the presentation of those

       issues by the intervenors as well. That's the law of this case."

       On October 21, 2008, the trial court did not appoint a guardian ad litem but appointed

Edward Duncan as a special master "not as a legal representative of living relatives of deceased

persons interred at St. Johannes Cemetery--but to advise and assist the Court." The court found that

"relatives of deceased persons buried in St. Johannes as well as other third persons who may have

certain rights in graves at St. Johannes have a statutory right to intervene in this action." While the

City had "attempted" service of process by publication, "[n]o persons served by publication other than

the intervenors" had filed an appearance. The court concluded that a "reasonable effort must be made

to give actual notice to persons who may have certain rights in the graves or gravesites at St.

Johannes so that these persons have an opportunity (should they desire) to intervene and participate

in the litigation." The City and St. Johannes were to supply Duncan with information regarding



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No. 2--10--0131


identity and contact information regarding living relatives by October 31, 2008, and notice was to be

sent via certified mail, return receipt requested, by November 21, 2008.

        On February 10, 2009, more than 270 living relatives (including Helen Runge, who had been

a plaintiff in the federal suit) filed a second amended petition to intervene, pursuant to section 10--5--

75 of the Act (735 ILCS 30/10--5--75 (West 2008)), and a traverse and motion to dismiss. This

second group of intervenors alleged that the City violated both Illinois and federal guarantees of the

free exercise of religion, state and federal prohibitions of the establishment of religion, and the

Religious Freedom Act, and they alleged that the taking of St. Johannes was not necessary. These

intervenors also sought class certification. On April 20, 2009, the trial court granted leave to

intervene. However, the court also found that the new intervenors "shall be bound by prior orders"

in the case, including the order of May 29, 2008. While that order was the law of the case, it did not

"automatically bind" these intervenors. However, the court noted that Helen Runge was a named

plaintiff in the federal case and an intervenor. Thus, "all other Intervenors in this action, and any

other persons found to be similarly situated and ultimately a member of a class herein, are privies to

Helen Runge and the Church." Any property interest of a living relative was "identical to the

property interest of Helen Runge and the Church." In addition, these intervenors' due process right

to receive their day in court had been "fully protected by the very adequate representation of Helen

Runge and the Church in the federal action." The court found "a substantial pre-existing legal

relationship" between these intervenors and the church, as the church had fee simple title in the

cemetery while the intervenors had purchased perpetual easements. Thus, the law of the case as to

prior rulings in this case applied to these intervenors, and res judicata applied to them through the trial

court's rulings against the original parties based on the prior judgment entered in the federal litigation.



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No. 2--10--0131


These intervenors were precluded from raising state constitutional and statutory claims, and the trial

court denied their traverse and motion to dismiss on April 16, 2009.

        The trial court subsequently ordered that notice of the proceedings be sent to additional living

relatives who had recently been discovered. On September 30, 2009, 68 such living relatives (the

injunctive plaintiffs), none of whom had been intervenors in the eminent-domain case, brought an

action seeking declaratory and injunctive relief against the City's planned acquisition and destruction

of St. Johannes (case No. 09--CH--4483). They alleged violations of state and federal guarantees

of the free exercise of religion and state and federal prohibitions against the establishment of religion.

They also raised claims regarding due process, breach of contract, equitable estoppel, unconstitutional

discretionary decision-making by the City, and abuse of discretion. On November 10, 2009, they filed

a motion for a temporary restraining order and/or a preliminary injunction against the taking and

destruction of St. Johannes. On the City's motion, the case was consolidated with the eminent-

domain action. The trial court then refused to hear the motion for a temporary restraining order and

found that the injunctive plaintiffs were bound by the court's prior ruling regarding res judicata.

        The trial court denied the original traverses following a hearing held on December 10, 2009.

Following a hearing on February 8, 2010, the trial court issued an order vesting title in St. Johannes

in the City. This appeal followed.

                                           RES JUDICATA

        The living relatives first contend that the trial court improperly applied res judicata to bar them

from raising claims regarding their constitutional religious rights. Under the doctrine of res judicata,

a final judgment on the merits rendered by a court of competent jurisdiction acts as a bar to a

subsequent suit between the parties involving the same cause of action. River Park, Inc. v. City of



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No. 2--10--0131


Highland Park, 184 Ill. 2d 290, 302 (1998). The bar extends to what was actually decided in the first

action, along with those matters that could have been decided in that suit. River Park, Inc., 184 Ill.

2d at 302. The policy behind res judicata is to promote judicial economy by preventing repetitive

litigation. Doe v. Gleicher, 393 Ill. App. 3d 31, 39 (2009). Three requirements must be satisfied for

the doctrine of res judicata to apply: (1) there was a final judgment on the merits, rendered by a court

of competent jurisdiction; (2) there is an identity of cause of action; and (3) there is an identity of

parties or their privies. River Park, Inc., 184 Ill. 2d at 302. As res judicata involves a question of

law, we give this issue de novo review. See Arvia v. Madigan, 209 Ill. 2d 520, 526 (2004).

        Clearly, a final judgment on the merits was entered in the federal litigation. The dismissal of

a complaint for failure to state a claim is an adjudication on the merits. See Nowak v. St. Rita High

School, 197 Ill. 2d 381, 390 (2001). Here, the federal district court dismissed St. John's first

amended complaint for failure to state a claim upon which relief could be granted and denied leave

to file a second amended complaint. The circuit court of appeals affirmed. The St. John's claims

were adjudicated on the merits in federal court.

        To determine whether an identity of cause of action exists such that res judicata applies,

Illinois courts apply the transactional analysis. River Park, Inc., 184 Ill. 2d at 310-11. Under this

test, we must look to the facts that give rise to the plaintiffs' right to relief. River Park, Inc., 184 Ill.

2d at 309-10. Separate claims are considered the same cause of action for res judicata purposes if

they arise from a single group of operative facts, regardless of whether they assert different theories

of relief. River Park, Inc., 184 Ill. 2d at 311. 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



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case, they could have been. See River Park, Inc., 184 Ill. 2d at 317 ("we cannot say in this case that

the district court would have lacked jurisdiction over plaintiffs' state law claims [that defendant

abused its power under the Illinois Constitution]. Federal courts are entitled to exercise supplemental

jurisdiction over claims that are part of the 'same case or controversy' as a claim over which they have

original jurisdiction. [Citation]"). Clearly, the transactional analysis reveals an identity of cause of

action for res judicata purposes.

        The third requirement of res judicata is an identity of parties or their privies. See River Park,

Inc., 184 Ill. 2d at 302. Regarding identity of parties, clearly St. John's and Helen Runge are identical

parties and, because there was a ruling on the merits and an identity of cause of action, they and their

privies are subject to the strictures of res judicata. However, the question remains whether the living

relatives are privies of St. John's or Runge such that they should be subject to the limits imposed

under res judicata.

        The term "privity" is not precise, and there is no generally prevailing definition that can

automatically be applied in all cases. City of Rockford v. Unit Six of the Policemen's Benevolent &

Protective Ass'n, 362 Ill. App. 3d 556, 563 (2005). "Privity expresses 'the idea that as to certain

matters and in certain circumstances persons who are not parties to an action but who are connected

with it in their interests are affected by the judgment with reference to interests involved in the action,

as if they were parties.' " Purmal v. Robert N. Wadington & Associates, 354 Ill. App. 3d 715, 722-23

(2004), quoting Restatement of Judgments §83, Comment a, at 389 (1942). Under Illinois law,

privity is said to exist when parties adequately represent the same legal interests. People ex rel. Burris

v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 296 (1992); City of Rockford, 362 Ill. App.

3d at 563. In addition, privity exists between parties who share a mutual or successive relationship



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No. 2--10--0131


in property rights that were the subject of an earlier action. Board of Education of Sunset Ridge

School District No. 29 v. Village of Northbrook, 295 Ill. App. 3d 909, 919 (1998). A nonparty may

be bound pursuant to privity if his interests are so closely aligned to those of a party that the party

is the "virtual representative" of the nonparty. City of Rockford, 362 Ill. App. 3d at 563.

       The living relatives argue that the United States Supreme Court has disapproved of the

doctrine of preclusion by virtual representation. See Taylor v. Sturgell, 553 U.S. 880, ___, 171 L.

Ed. 2d 155, 175-76, 128 S. Ct. 2161, 2178 (2008). While this is true, the living relatives neglect to

note that, in deciding Taylor, the Court was involved in developing the federal common law of

preclusion, not imposing a single uniform rule of res judicata. See Taylor, 553 U.S. at ___, 171 L.

Ed. 2d at 167, 128 S. Ct. at 2171. The Court stated that the "established grounds for nonparty

preclusion described in this opinion" applied to the "preclusive effects of a judgment in a federal-

question case decided by a federal court." Taylor, 553 U.S. at ___, 171 L. Ed. 2d at 175, 128 S. Ct.

at 2178; see also State ex rel. Schachter v. Ohio Public Employees Retirement Board, 121 Ohio St.

3d 526, 2009--Ohio--1704, 905 N.E.2d 1210, ¶42. The Court has held that states "are generally free

to develop their own rules for protecting against the relitigation of common issues or the piecemeal

resolution of disputes." Richards v. Jefferson County, 517 U.S. 793, 797, 135 L. Ed. 2d 76, 83, 116

S. Ct. 1761, 1765 (1996). Indeed, when a federal court sits in judgment of a diversity case, federal

law applies the rules of preclusion applied by the state in which the rendering court sits. Taylor, 553

U.S. at ___, 171 L. Ed. 2d at 167, 128 S. Ct. at 2171. Extreme applications of the doctrine of res

judicata might be inconsistent with a fundamental federal right. Richards, 517 U.S. at 797, 135 L.




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Ed. 2d at 83, 116 S. Ct. at 1765.2 However, Taylor in no way addressed, let alone overruled, this

state's common law regarding privity.

        St. John's was joined in its federal court filing by Helen Runge and Shirley Steele, whom the

Seventh Circuit described as "two of its parishioners." St. John's United Church of Christ, 502 F.3d

at 619. Runge was also one of the more than 270 living relatives who were granted leave to intervene

in the eminent-domain case. Thus, the question is whether the presence of St. John's and/or Runge

and Steele as parties in the federal case provides an identity of parties or their privies such that res

judicata would apply to the living relatives.

        In its traverse and motion to dismiss, St. John's alleged that it was the owner of St. Johannes.

St. John's and its congregants shared "a core religious belief" that St. Johannes "is holy and sacred

ground," where "the bodies of the deceased Members and relatives are committed to the ground at

the conclusion of the Rite of Burial ceremony." The church community also had a "central religious

belief that the graves of those departed and buried in the consecrated ground of St. Johannes must

remain inviolate and undisturbed until the Judgment Day when Jesus Christ will raise them up from



        2
            In Richards, the Alabama Supreme Court had concluded that the class of all nonfederal

employees subject to Jefferson County's occupation tax were adequately represented in a prior suit

challenging the tax by three county taxpayers, the City of Birmingham, and the city's acting director

of finance. The United States Supreme Court described the petitioners in Richards, who had not

received any notice of the prior litigation, and the prior litigants as "mere 'strangers' to one another"

and was unable to conclude that the prior plaintiffs "provided representation sufficient to make up

for the fact that petitioners neither participated in *** nor had the opportunity to participate in" the

prior action. Richards, 517 U.S. at 802, 135 L. Ed. 2d at 86, 116 S. Ct. at 1768.

                                                  -11-
No. 2--10--0131


the dead." To remove or disturb a body in St. Johannes "would be a desecration of holy ground."

Taking this ground "would substantially burden and injure the religious exercise" of St. John's and

its members. The ground is held by St. John's "in sacred trust for God," and seizure by a secular body

would be a "sacrilege" and injurious to St. John's religious beliefs.

        Each traverse and motion to dismiss filed by the intervenors and the complaint for injunctive

relief alleged, almost verbatim, the "core" and "central" religious beliefs alleged by St. John's in its

traverse and motion to dismiss. In addition, each alleged that those seeking relief owned rights of

easement in St. Johannes that were "associated with the interment therein of numerous *** forbearers

and relatives." The property interests include "the right of access to preserve and protect the graves

of their deceased relatives from defacement, destruction and despoliation, including the preservation

and protection of these sacred graves from injury to the fundamental religious beliefs and religious

rights of the [living relatives] and their deceased relatives that these sacred graves remain undisturbed

to the Day of Resurrection."

        All of the living relatives in this case shared the same core religious beliefs and property

interests that they sought to protect by intervening or seeking injunctive relief. They also shared

those same core religious beliefs with St. John's. The living relatives' interests are not only closely

aligned to those of Runge, they are, in the words of the living relatives' own filings, exactly the same

as Runge's. Runge and the other intervenors are no "mere 'strangers' to one another." See Richards,

517 U.S. at 802, 135 L. Ed. 2d at 86, 116 S. Ct. at 1768. As Runge was a party to the federal

litigation, and all the intervenors' interests were the same as Runge's, we determine that Runge was

an adequate representative of the intervenors such that Runge and the living relatives were privies for

purposes of a res judicata analysis. Thus, as we have already found that there was a final judgment



                                                  -12-
No. 2--10--0131


on the merits rendered by a court of competent jurisdiction and that there was an identity of cause

of action, we conclude that the trial court did not err in applying res judicata to all of the living

relatives who intervened or sought injunctive relief.

       Because we have determined that the trial court did not err in applying res judicata to the

living relatives, we need not address the constitutional issues raised by those parties.

                                            DISCOVERY

       St. John's and the living relatives (appellants) contend that the trial court erred in denying their

motion to compel discovery of additional documents regarding the issues of necessity and discretion.

A trial court is granted considerable discretion in ruling on matters pertaining to discovery, and this

court will not reverse such a ruling absent an abuse of that discretion. Kensington's Wine Auctioneers

& Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1, 11 (2009).

       Each of the three traverses filed in this case alleged that the taking and destruction of St.

Johannes Cemetery was not necessary for the planned development of O'Hare. Appellants argue that

parts of the project that formed the basis for the Modernization Act and the enabling ordinance are

no longer being considered by the City and that there is no longer a demonstrable need for the runway

lengths and/or configuration that initially required the taking of St. Johannes.

       An ordinance containing legislative findings of necessity is prima facie evidence of necessity.

See City of Oakbrook Terrace v. La Salle National Bank, 186 Ill. App. 3d 343, 350 (1989). A court's

inquiry into the existence of necessity in an eminent domain case is "limited but crucial." People ex

rel. Director of Finance v. Young Women's Christian Ass'n, 86 Ill. 2d 219, 233 (1981) (YWCA).

       "The general rule is that where the legislature has delegated to a corporation the authority to

       exercise the power of eminent domain, the corporation has also the authority to decide on the



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        necessity for exercising the right, and its decision will be conclusive in the absence of a clear

        abuse of the power granted. [Citations.] An abuse of such power, however, will not be

        tolerated, and if no necessity for its exercise exists, or if it appears that the quantity of the

        property sought to be taken is grossly in excess of the amount necessary for the public use,

        the court will not permit the land to be taken." City of Chicago v. Vaccarro, 408 Ill. 587, 597

        (1951).

A condemnation action can involve at least four issues concerning necessity: (1) whether the declared

public use is necessary; (2) whether some property of the general type being condemned is necessary

to serve the declared public use; (3) whether the property condemned is necessary as opposed to

similar or neighboring properties; and (4) whether it is necessary to acquire the subject property by

eminent domain as opposed to voluntary sale or lease. YWCA, 86 Ill. 2d at 233. It is permissible

for a condemnor to take not only sufficient land for the present need, but it may, and should,

anticipate future increased demands for the public use for which the land is being devoted. Vaccarro,

408 Ill. at 597. "This court is fully committed to this rule." Vaccarro, 408 Ill. at 597.

        In denying the motion to compel, the trial court stated that it had reviewed "all of the

documents, plans, and public records previously produced by the City in this matter" and found that

"St. John's has everything by way of discovery on the issue of necessity the City is required to

produce." The court also specifically found that "the possibility of alternate plans, and the City's

ability to pay for construction, are not areas of judicial inquiry."

        We first note that it is unclear exactly what evidence was turned over to appellants. In their

brief, appellants allege that the City had made available "various public documents," yet later they

reference "thousands of pages of FAA material submitted by Chicago." Ultimately, appellants seem



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to be seeking "discovery of Chicago's internal documents relative to Appellants' constitutional

necessity and abuse of discretion claims." They argue that "there are strong indications that Chicago

has now abandoned or curtailed major components of the Alternate C (OMP)." Thus, as they argued

in their motion to compel:

       "The seizure and destruction of St. Johannes by Chicago is not necessary for the limited

       runway project that Chicago is actually building at O'Hare. There are alternative locations

       for the runway that Chicago proposes to construct over and through St. Johannes Cemetery--

       locations that would not destroy St. Johannes Cemetery."

       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. Therefore, we find no abuse of discretion here.




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                             IMPROPER GRANT OF DISCRETION

       Appellants next contend that the City's enabling ordinance improperly delegated decisions as

to which projects in the expansion plan were to be built and which parcels of land within the planned

expansion area were to be acquired. In its December 17, 2009, opinion and order, the trial court

stated that this issue was brought up only in an oral request to amend a traverse, and the court denied

it as "untimely and irrelevant." However, we note that count IX of the complaint for injunctive and

declaratory relief specifically alleged "UNCONSTITUTIONAL DISCRETIONARY DECISION-

MAKING POWER IN THE EXECUTIVE BRANCH OF CHICAGO."

       A governmental body has only the powers of eminent domain that are conferred upon it by

the appropriate legislative body, and a statute or ordinance conferring the power of eminent domain

must be strictly construed. Forest Preserve District v. Brown Family Trust, 323 Ill. App. 3d 686, 691

(2001). In construing an ordinance, we apply the same principles of construction that we would in

construing a statute. Brown Family Trust, 323 Ill. App. 3d at 692. Although an ordinance delegating

the power of eminent domain is to be strictly construed, an ordinance is presumed valid, and the

burden of establishing invalidity is on those who challenge the ordinance. Brown Family Trust, 323

Ill. App. 3d at 692.

       The cardinal rule of statutory construction is to ascertain and effectuate the intent of the

legislature, and the best evidence of this legislative intent is the language employed in the statute

itself. Brown Family Trust, 323 Ill. App. 3d at 692. This language must be given its plain and

ordinary meaning. Brown Family Trust, 323 Ill. App. 3d at 692. A court is not allowed to ignore

the plain meaning by reading into it exceptions, limitations, or conditions that the legislature did not

express. Brown Family Trust, 323 Ill. App. 3d at 692. Where statutory language is clear and



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unambiguous, a court must give it effect without resort to other aids of construction. Brown Family

Trust, 323 Ill. App. 3d at 692.

        Appellants herein fail to quote from, cite to, or even direct this court's attention to the

language of the enabling ordinance. The burden is on appellants to establish the invalidity of the

ordinance, yet they fail to even direct us to the ordinance. We will not scour the record to develop

an issue for a party. See New v. Pace Suburban Bus Service, 398 Ill. App. 3d 371, 384 (2010).

Appellants have failed to sustain their burden to establish prejudicial error.

                                       HEARSAY EVIDENCE

        Appellants next contend that the trial court erred in allowing the introduction into evidence

of two compilation reports of the Federal Aviation Administration (FAA)--its "Environmental Impact

Statement" (EIS) and its "Record of Decision" (ROD). The decision to admit or exclude evidence

rests within the sound discretion of the trial court, and that decision will not be disturbed in the

absence of an abuse of that discretion. Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 847 (2010).

Furthermore, a party is not entitled to reversal based upon a trial court's evidentiary rulings unless the

error substantially prejudiced the aggrieved party and affected the outcome of the case. Wilbourn,

398 Ill. App. 3d at 848.

        Appellants do not explain what is contained in these documents, under what circumstances

the reports were allowed in, what arguments were made, or even how the trial court ruled. This

argument is underdeveloped and does not rise to the level necessary for this court to determine error,

let alone prejudicial error.

                                        VESTING OF TITLE




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       Appellants contend that the City did not comply with section 20--5--5(b) of the Act (735

ILCS 30/20--5--5(b) (West 2008)), the quick-take provision. Among other things, section 20--5--

5(b) requires that the motion for taking shall state the "formally adopted schedule or plan of operation

for the execution of the plaintiff's project." 735 ILCS 30/20--5--5(b) (West 2008). Appellants argue

that the "project" for purposes of this requirement is the entire O'Hare modernization program. The

City concedes that its motion for immediate vesting of title, brought under the quick-take provision,

lists the entire O'Hare modernization program as the project for which the property is to be taken.

However, the motion also states that immediate acquisition of the property is necessary for, "among

other things, the construction of new Runway 10C/28C." The motion also contains a proposed

schedule for the building of that runway, with taxiway construction beginning in July 2010 and

completion of the runway in 2012. The City also stated that it anticipated that the relocation process

for removal and reinterment of the deceased buried in St. Johannes would take two years from the

date of acquisition.

       While the language of section 20--5--5(b) is unambiguous and apparently mandatory,

appellants do not cite to, nor has our research discovered, any case law holding that such a failure to

attach the entire final plan negates quick-take authority. However, in City of Chicago v. First Bank

of Oak Park, 178 Ill. App. 3d 321, 328 (1988), which involved condemnation of property for the

construction of a "Southwest Rapid Transit Line" in Chicago, the City was alleged to have failed to

introduce the final plans for use of the property. The court held:

       " 'The fact that the Department of Transportation could not offer extensive plans for every

       parcel of land sought in the acquisition, or for every phase of a project which would extend

       over a period of years, did not deprive the Department of authority to condemn the various



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          tracts.' " First Bank, 178 Ill. App. 3d at 328, quoting Department of Transportation v. Keller,

          127 Ill. App. 3d 976, 979 (1984).

          The O'Hare modernization program is a massive project involving construction of many

elements over many acres of property over a course of many years. Plans for such a massive project

change over time. In addition, as we have stated above, our supreme court is "fully committed" to

the rule that a condemnor may, and should, anticipate future increased demands for the public use for

which the land is being devoted, in addition to sufficient land for the present need. Vaccarro, 408 Ill.

at 597.

          Here, the City provided a specific timeline for the specific project that affects the property in

question. We determine that there has been sufficient compliance with section 20--5--5(b) and that

vesting of title by quick-take was proper.

          For these reasons, the judgment of the circuit court of Du Page County is affirmed.

          Affirmed.

          ZENOFF, P.J., and HUTCHINSON, J., concur.




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