The City of Chicago has cleared a major hurdle in its quest to expand O’Hare International Airport.

In a 2 to 1 decision, last Thursday, the U.S. Court of Appeals for the Seventh Circuit sided with the City of Chicago over concerns raised by Elk Grove Village, Bensenville, and the owners of St. Johannes Cemetery.

The cemetery, which is critical to the airport’s plan, is located southwest of the airport and lies in the path of the airport’s expansion.

Thursday’s decision enables the city to acquire and relocate the cemetery, established in 1849.

If the city is unable to purchase the cemetery from St. John’s United Church of Christ, Bensenville, the property will be condemned. The city offered $630,000 for the property last March.

The majority decision by by Circuit Judges Diane Wood and William Bauer was written by Judge Wood.

"The routes and networks that have developed around O’Hare are vast and entrenched," she wrote.

"The FAA considered the option of diverting air traffic to other regional airports or mid-continent hubs, but it found that local, national and international dependence on O’Hare as a national connecting hub and international gateway had developed to the point of making those ideas effectively unworkable."

"To borrow a concept from the ‘essential facilities’ doctrine in antitrust law, as a practical matter it is impossible reasonably to duplicate O’Hare in a way that meets the crushing demand for its important services.

"If the decision were ours to make (a proposition that we find doubtful), rather than that of the FAA or the competent authorities in Chicago and Illinois, we would find that there really is "no realistic, economically practical alternative,… to the restructuring of O’Hare to remedy those concerns," she stated.

She added, "Unfortunately, geography and the needs of the expansion project made it impossible similarly to accommodate the St. Johannes Cemetery," noting that the FAA’s review of alternative proposals illustrates, however, that this conclusion was not reached lightly.

Circuit Judge Kenneth Ripple issued a dissenting opinion.

"I believe that the amendments to the Illinois Religious Freedom Restoration Act made in the O’Hare Modernization Act violate the Free Exercise Clause, and, for that reason, must be subject to strict scrutiny."

The long journey toward O’Hare expansion began in June 2001, when the city first announced its plan to increase O’Hare’s capacity in 2001. The plan later developed into the O’Hare Modernization Program, (OMP).

The OMP proposed to correct some of the inefficiencies created by the airfield’s outdated configure-ration of seven intersecting runways.

Instead, six parallel and two crosswind runways were designed.

Mayor Richard Daley and Gov. George Ryan approved the O’Hare plan on Dec. 5, 2001.

The following summer, the city announced plans to acquire 433 acres of land in Elk Grove Village and Bensenville. The acquisition included a number of homes and businesses, a police and fire station, an elementary school, several parklands and two cemeteries - St. Johannes and Rest Haven. Rest Haven is no longer in the path of expansion.

Every attempt to secure the expansion project was met with litigation, in numerous jurisdictions from the Washington, D.C. circuit to local DuPage County courts.

The O’Hare Modernization Act (OMA) was enacted by the Illinois General Assembly in May 2003. It granted the city broad powers to acquire property, including that which belongs to a public body or municipality, for any purpose related to the O’Hare Modernization Program.

The Act also made it clear that the City of Chicago need not obtain the consent of a cemetery’s owner in order to exercise its powers, even though such consent is normally required.

The OMA amended many existing statutes, including the addition of a new section 30 to the Illinois Religious Freedom Restoration Act.

On June 19, 2003, an amended complaint was filed challenging the city’s plan to acquire land before the FAA issued its Environmental Impact Statement (EIS) or Record of Decision, (ROD).

The city voluntarily agreed that it would not acquire property in Bensenville and Elk Grove, including the cemeteries until the FAA issued an EIS or ROD.

At the end of 2003, the city began to move forward with other components of its plan.

In July 2005, the FAA issued its final EIS, which compared the city’s proposal with other alternatives. It concluded that the city’s airport plan, with some minor revisions, was the preferred course.

The EIS also reviewed the legal issues raised by the cemeteries. It concluded that if the city’s plan was approved in the ROD, the St. Johannes Cemetery would be relocated, while the Rest haven Cemetery would not.

On Sept. 30, 2005, the FAA issued its ROD granting the city’s request for approval of its airport layout plan. The same day the FAA issued its ROD, the municipal plaintiffs and St. John’s UCC Church filed a petition for review of the EIS and ROD in the DC Circuit Court.

On Oct. 25, 2005, the D.C. Circuit denied St. John’s and the municipal plaintiff’s emergency motion for a stay pending appeal, determining that they had not demonstrated either the irreparable injury or the likelihood of success on merits required for the issuance of a stay pending review.