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Clement v. O'malley





APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.


Rehearing denied May 8, 1981.

Plaintiffs appeal from an order dismissing their complaint for a declaratory judgment and injunctive relief against defendants. The complaint alleged that defendant Chicago Park District (Park District) constructed a golf driving range unlawfully in Jackson Park in the city of Chicago. Plaintiffs sought an order directing defendants to restore the site to the previous condition, or alternatively, that they be enjoined from operating the driving range until securing approval from the Chicago Plan Commission (Plan Commission).

They raise the following issues on appeal: (1) whether construction of the driving range was unlawful because prior approval was not obtained from the Plan Commission; (2) whether construction of the driving range breached the promise of the Park District to restore the area to its prior condition; and (3) whether conversion of an area of Jackson Park from casual open space to a driving range is a misuse of park property constituting breach of the public trust.

The pertinent facts of this case follow and are largely undisputed. Jackson Park is a part of the Chicago Park District system of parks. It consists of approximately 570 acres on the south side of Chicago adjacent to Lake Michigan. In 1957 the U.S. Army leased approximately 11 acres as a site for a Nike Missile Installation. Upon terminating that use in 1971, and in lieu of restoring the property to its original condition (as provided by the lease), the Army paid a sum of money to the Park District. Instead of restoring the area, the Park District in 1978 designated it for use as a golf driving range and fenced in the entire 11 acres. Prior to the Army's use the area had been used for picnicking, casual play activities, jogging and meadow bird nesting.

The record discloses that in April of 1978, an estimate of cost and layout for the driving range was drawn up by the Park District which it hoped could be completed and become operational by July 1, 1978. On May 5, 1978, the Park District submitted "An Application to the Chicago Plan Commission under the Lake Michigan and Chicago Lakefront Protection Ordinance" (hereafter Lakefront Protection Ordinance) seeking approval for construction of the driving range in Jackson Park. The application stated that:

"The Park District submits that the above proposed project is compatible with the guidelines of the Comprehensive Plan for Chicago and that the proposed construction of the new facility will not conflict in any way with the Lake Michigan and Chicago Lakefront Protection Ordinance nor will it conflict with the 14 Basic Policies of the Lakefront Plan of Chicago."

Although the Plan Commission did not place this application on its agenda until June 15, 1978, the Park District advertised for construction and asphalt paving bids by May 15, 1978, awarded contracts on May 23, 1978, and then publicly announced the project on May 25, 1978.

It soon began marking the site for construction. A June 19, 1978, meeting with community representatives resulted in providing adequate space for both the range and bird nesting areas. The Plan Commission met on July 13, 1978, and received Commissioner Hill's recommendation that the Plan Commission accept the Park District's application. Julian Levi, chairman of the Plan Commission, expressed his personal views that "[a] driving range was a proper installation in a park, just as a golf course is *fn1 and that citizens who wished to protest the project should address their concerns to the Park District, not the Plan Commission."

Although the Park District moved to withdraw its application from consideration at the Plan Commission's meeting of August 17, 1978, the request was not acted upon because the Commission requested a legal opinion from the corporation counsel of the city of Chicago concerning its jurisdiction over the proposed project.

Plaintiffs filed the instant suit on August 21, 1978. By August 30, 1978, the Park District had installed steel mesh fencing and fence posts, bulldozed trees and shrubs within the fenced area and closed the site to the public. Pursuant to the prayers of the complaint, the trial court granted a preliminary injunction on September 6, 1978, and directed the Plan Commission to determine whether the project was governed by the Lakefront Protection Ordinance. The Plan Commission did not comply with the court's order, arguing that it was not a party to the suit and that no Park District application was pending before it. Plaintiff's motion to add the Plan Commission as a party was denied. Later, the trial court held that because the Park District was an "independent body corporate and politic," the Lakefront Protection Ordinance did not apply to it and dismissed count I on April 10, 1979. After a hearing on plaintiff's motion to vacate, the complaint was dismissed in its entirety on September 6, 1979. In so ruling, the court reversed the holding in its April 10 order concerning the applicability of the Lakefront Protection Ordinance, which stated as follows:

"However, upon reconsideration, I find that the Jackson Park area, having been designated as a historical monument is subject to the terms and conditions of the Chicago Lakefront [sic] [Protection] Ordinance; and I find that the Chicago * * * Plan Commission was derelict in their duty in refusing to proceed further and to hear and decide this matter with respect to the construction of this site in this area; and to that extent, I reverse my original finding dismissing Count I and I enter a finding for the plaintiff * * *."

The trial court orally found "that it is not necessary for the Park District to submit this project to the Chicago Plan Commission because the principal reason is that I found this to be a proper park purpose." The court made the following written findings — that the golf driving range was a proper park function; that "with respect to this particular construction project and this particular case the approval of the Chicago Plan Commission is not necessary"; and that the question of fees or a charge for the use of park facilities was not properly presented. It is from that order that this appeal was taken.


Plaintiffs contend essentially that the Plan Commission is authorized under the Lakefront Protection Ordinance to regulate construction projects of state and municipal agencies on lands dedicated by statute as encompassed within the system of Chicago's Lakefront Parks; that the Park District acted unlawfully in failing to secure the Plan Commission's approval for construction of the driving range; that the construction project breached the Park District's obligation to restore the area to the condition that existed prior to its use as a Nike missile site; that conversion of a significant part of multiple-use open space in Jackson Park to a fenced-off single use requiring payment of a fee violates the public trust placed in the Park District by the legislature when it designated Jackson Park as a public park; and that, as a remedy, the Park District should be ordered to dismantle the driving range or to suspend operations pending Plan Commission approval. The Park District maintains, on the other hand, that its construction projects are not subject to the Plan Commission and that, in any event, the project in question did not require such approval, as it was a proper park purpose.

Jackson Park was originally acquired for use as a public park under the authority granted by a statute enacted in 1869 (I Private Laws 1869, at 358) which provided that a five-person board of park commissioners, known as the South Park Commissioners and appointed by the Governor, be authorized to select certain specifically described land. Section 4 of the statute further provided that the lands:

"* * * when acquired by said Commissioners, as provided by this act, shall be held, managed and controlled by them and their successors, as a public park, for the recreation, health and benefit of the public, and free to all persons forever, subject to such necessary rules and regulations as shall from time to time be adopted by said commissioners and their ...

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