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Appeals court stops O'Hare bulldozers in Bensenville
By Marni Pyke | Daily Herald Staff
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Published: 1/9/2009 10:23 AM

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Illinois appeals court justices turned back the clock on a dramatic ruling this summer by a DuPage judge allowing the bulldozing of Bensenville homes for the O'Hare International Airport expansion.

The Illinois Appellate Court 2nd District Wednesday reversed DuPage Judge Kenneth Popejoy's decision to lift an injunction stopping teardowns and sent the case back to him, although justices upheld other related actions.

Bensenville homeowners and village leaders had argued that razing about 600 homes in the northeast part of the village would cause pollution and environmental hazards. Chicago officials said tests showed no environmental dangers existed and pledged to remove contaminated materials and hose down buildings to prevent dust spreading.

Popejoy concluded Aug. 7 Bensenville hadn't proven a public health threat. He stated, "There are sufficient governmental agencies and regulations that can oversee this demolition project," and "further oversight by the court would be done without proper authority."

But Justice Jack O'Malley, a former Cook County state's attorney who wrote Thursday's opinion, disagreed. The judge's "entire analysis was influenced by its factually unfounded and legally erroneous view of the potential role of administrative agencies in the demolition," O'Malley wrote.

The opinion reflects a comment O'Malley made during a hearing December when he suggested the judge's attitude seemed to be that "someone in a white suit would be monitoring" the demolitions.

Chicago is in the midst of expanding O'Hare to create six parallel runways. O'Hare Modernization Program Executive Director Rosemarie Andolino said the city couldn't comment on the decision yet. But the expansion will continue, she stressed, adding the city had just opened bids on a contract to pave the west end of a proposed runway at O'Hare's north end.

"It's important that people know this program is moving forward. It is happening. We're putting pavement down this spring," Andolino said.

Bensenville attorney Joseph Karaganis called the ruling "important for the protection of public health."

"You can't abdicate your responsibility," he said, referring to the circuit court. "The judiciary has an independent responsibility."

During hearings last summer, various experts testified about the impact of the teardowns on people living in the neighborhood. As expected, Chicago's witnesses concluded there would be negligible effects while Bensenville's testified there would be significant risk.

The appeals court faulted Popejoy for failing to resolve such conflicts, saying the evidence was "teeming with polarized expert opinions on highly technical matters." Justices said the case would be remanded back to Popejoy for further consideration.

Lawyers from both sides will return to his courtroom Wednesday to hash out what's next.

Justices supported Popejoy's dismissal of Bensenville's claims that the demolitions were unconstitutional and allegations that the city's need for all the properties was fraudulent.

• Daily Herald staff writer Christy Gutowski contributed to this report.

O'Hare: Lawyers return to court Wednesday