Ruling boosts O'Hare plan to move suburban cemetery

Chicago's plans to uproot a church cemetery to expand O'Hare International Airport got a boost Thursday from a state appeals court, leaving opponents who claim moving it violates the 1st Amendment's guarantees of religious freedom with few options.

A dissent in a 3-1 decision by a panel of judges on the 7th Circuit Court of Appeals did give them hope that they could raise the issue with the full court of appeals and even the U.S. Supreme Court.

The Chicago-based appellate court said the city was within its rights to relocate the 158-year-old St. Johannes Cemetery in Bensenville in order to make room for an additional runway, part of the $15 billion airport expansion project.

"Over the years, Illinois has condemned cemeteries, both religious and otherwise, for a variety of public uses, such as highways," the court stated.

The city will try to negotiate with the cemetery's owner, St. John's United Church of Christ, to buy the property, said Rosemarie Andolino, executive director of the O'Hare Modernization Project.

"Now that the court will allow us to take title to St. Johannes, the city is committed to engaging in an open dialogue with church officials so that the acquisition and relocation process can begin, and this project of national significance can continue moving forward," she said.

A purchase offer of $630,000, first made in March 2006, remains on the table, Andolino said.

If the church refuses to sell, the city will go to court seeking to condemn the property, officials said.

Andolino said her office will "proceed with the utmost compassion, dignity" in its dealings with families of those buried in the cemetery in finding new resting places under standards set by the federal government.

But Joseph Karaganis, a lawyer for the church and the Village of Bensenville, said opponents plan to request a stay to prevent the moving of the cemetery and press ahead with the case.

"I think that the critical 1st Amendment issues deserve consideration by the full 7th Circuit and a petition for review by the U.S. Supreme Court," he said. "These are issues of fundamental importance."

Opponents of the airport expansion have been following a two-pronged approach concerning the cemetery in different federal courts, Karaganis said.

They have argued -- unsuccessfully, so far -- that the expansion violates state and federal religious protections.

In Thursday's decision, the appeals court ruled against the church's contention that the destruction of St. Johannes violates the Illinois Religious Freedom Restoration Act, a law protecting churches and other religious bodies from harm by the government. The court also agreed with a lower court that a suit by Bensenville, Elk Grove Village and the Rest Haven Cemetery Association is moot because O'Hare expansion no longer threatens Rest Haven, another cemetery in Bensenville.

Separately, a panel of the U.S. Court of Appeals in Washington ruled in August 2006 that the Federal Religious Freedom Restoration Act didn't apply in the O'Hare case because federal involvement in O'Hare is insufficient to trigger the act, Karaganis said.

Opponents are appealing that decision, arguing the airport is receiving $1.5 billion in federal money for the airport expansion, which indicates a major U.S. government stake in the construction.

Andolino, who spoke at a City Hall news conference, expressed confidence that the expansion project, including the new runway whose footprint extends into the cemetery, would proceed.

"In just 433 days from today, we will be commissioning our new north runway, ... our new north air traffic control tower as well as the extension of Runway 10-Left," she said. "That will be Nov. 20 of 2008. With [Thursday's] ruling we are just that much closer to providing the full benefits of the [airport expansion] to the Chicago region and the national aviation system."

"We are very excited about this decision," Mayor Richard Daley said earlier Thursday after learning of the ruling. "It came out on the side we asked for. We think it is important we keep moving on in regard to the expansion of O'Hare International Airport."

As for relocating a cemetery, Daley said: "They do this all over the country. This is not unusual in the transportation field. ... You take into consideration the families, where you are moving the plots. It is governed by federal rules, laws and regulations."

The city's plan calls for relocating about 1,600 graves, among them nearly 50 relatives of Bob Sell, a spokesman for St. John's.

"There's no question in the mind of the church that this is sacred ground," Sell said. "And it's not to be disturbed by human hands -- certainly not the hands of a City of Chicago construction worker with a shovel."

Along with the cemetery, Chicago says it needs to acquire 611 properties in Bensenville for the expansion, and it has bought 512 so far.

rworking@tribune.com

gwashburn@tribune.com


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