Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Clement v. Chicago Park District

OPINION FILED APRIL 13, 1983.

KAY CLEMENT ET AL., APPELLANTS,

v.

THE CHICAGO PARK DISTRICT ET AL., APPELLEES.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 27, 1983.

Plaintiffs appealed from the order of the circuit court of Cook County dismissing their action for a declaratory judgment and injunctive relief against the defendants, the Chicago Park District and its commissioners, who are sued in both their individual and official capacities. The appellate court affirmed (95 Ill. App.3d 824), and we allowed plaintiffs' petition for leave to appeal (87 Ill.2d R. 315).

In their complaint plaintiffs alleged that they are citizens of the State of Illinois, residents of the city of Chicago, and taxpayers of the Chicago Park District. Plaintiffs alleged further that defendants deliberately and knowingly began and were continuing the unlawful construction of a golf driving range in Jackson Park in the city of Chicago, that such actions of defendants were contrary to the duties imposed upon them by law, that defendants were obligated to restore the site to its previous condition, and to reimburse the Chicago Park District the amount of costs to the park district for the construction and removal of the golf driving range.

The facts are adequately stated in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issues. In 1978 the Chicago Park District designated approximately 11 acres of land located in Jackson Park in the city of Chicago for use as a golf driving range. On May 5, 1978, the park district submitted "An Application to the Chicago Plan Commission under the Lake Michigan and Chicago Lakefront Protection Ordinance" seeking approval for construction of the driving range. Without awaiting the approval of the plan commission the park district advertised for construction bids, awarded contracts, and publicly announced the project. The plan commission met on July 13, 1978, at which time one of the commissioners recommended that the plan commission accept the park district's application. The chairman of the plan commission expressed his personal view that a driving range was a proper park use and that the question whether change from one park use to another was appropriate was a problem for the park district commissioners, not the plan commission. At the plan commission's meeting of August 17, 1978, the park district moved to withdraw its application. The record indicates that on a vote by the plan commission the withdrawal request was approved. The record shows that it was understood that a legal opinion had been requested from the corporation counsel of the city of Chicago concerning the jurisdiction of the plan commission over the proposed project, and that if legal advice indicated that the plan commission had jurisdiction to rule on the driving range matter the question would be back before the plan commission. The record does not reflect that the corporation counsel submitted an opinion.

Plaintiffs sought a declaratory judgment that construction of the driving range was unlawful because of the park district's failure to receive prior approval from the plan commission pursuant to the lakefront protection ordinance (Chicago Municipal Code sec. 194B-1 et seq.), and the entry of orders enjoining defendants from continuing with the project and directing defendants to restore the site to its previous condition and to reimburse the park district for the costs of the construction and removal of the driving range. The circuit court granted a preliminary injunction and ordered that the question whether under the lakefront protection ordinance the driving range could be constructed be referred to the Chicago plan commission. The plan commission failed to take any action in compliance with the court's order, apparently taking the position that because it was not a party to the suit and because no park district application was pending before it it was not bound by the order. Plaintiffs' motion to add the plan commission as a party was denied. Because plaintiffs failed to furnish a bond as required by the preliminary injunction order the injunction was dissolved. After a hearing the circuit court found that the driving range was a proper park function and that the park district commissioners did not exceed their powers or violate any of their duties and responsibilities in constructing the driving range. The court further found that the Chicago Park District was required to file an application with the Chicago plan commission in accordance with both section 11-12-4.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 11-12-4.1), and the Lake Michigan and Chicago Lakefront Protection Ordinance. (See Chicago Municipal Code sec. 194B-1 et seq.) The court stated that "with respect to this particular construction project and this particular case the approval of the Chicago Planning Commission is not necessary" and dismissed plaintiff's complaint. In its oral findings the court indicated that the Jackson Park area, having been designated a historical monument, was subject to the terms and conditions of the Chicago lakefront ordinance and that the plan commission was derelict in its duty in refusing to proceed and hear the matter with respect to the construction project. The court stated that based on its finding that the driving range was a proper park purpose it considered the approval of the plan commission useless and unnecessary.

In affirming the judgment the appellate court held that the defendant park district "exercises plenary and exclusive jurisdiction over its parks" (95 Ill. App.3d 824, 832) and that although section 11-12-4.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 11-12-4.1) appeared to grant to the plan commission authority to approve any proposed construction project in a lakefront park, its negative report purporting to veto the project would be merely advisory. (95 Ill. App.3d 824, 830.) It held, too, that the Lake Michigan and Chicago Lakefront Protection Ordinance (Chicago Municipal Code sec. 194B-1 et seq.) did not confer any greater veto power on the plan commission for the reason that under City of Des Plaines v. Metropolitan Sanitary District (1974), 59 Ill.2d 29, "the subsequent acquisition of home-rule powers does not alter the legal relationship previously existing between a city and another governmental unit." (95 Ill. App.3d 824, 834-35.) We note parenthetically that the decision in Des Plaines was based on res judicata, and we do not agree with the appellate court's interpretation of the holding.

The relevant portions of section 11-12-4.1 of the Illinois Municipal Code and the lakefront protection ordinance provide:

"Whenever a municipality of more than 500,000 population has created a plan commission pursuant to the provisions of this Division 12, every plan, design or other proposal by any public body or agency * * * which changes the use of any real property owned or occupied by any public body or agency or the location of any improvement thereon within the territorial limits of the municipality, shall be referred to the plan commission * * * to authorize such changes * * *. * * * A report that any such plan, design, or other proposal is not in conformity with the long range planning objectives of the municipality, or the official plan for the municipality * * * shall not bar the public body or agency having jurisdiction over such real property or improvement thereon from thereafter making such changes * * *." Ill. Rev. Stat. 1979, ch. 24, par. 11-12-4.1.

"It shall be unlawful for any physical change, whether temporary or permanent, public or private, to be undertaken, including, but not limited to, * * * construction of any kind, within the Lake Michigan and Chicago Lakefront Protection District, * * * without first having secured the approval therefor from the Chicago Plan Commission * * *." Chicago Municipal Code sec. 194B-5.1.

For the most part the briefs of the parties consist of contentions and arguments concerning the applicability of the lakefront protection ordinance and section 11-12-4.1 of the Illinois Municipal Code and which of them governs the decision of this appeal. In the posture of this case, and on this record, we need not and do not decide these questions. Both the circuit and appellate courts> decided that the construction of the driving range was a proper park purpose, and we agree. Further, we agree with the appellate court that under the standards formulated in Paepcke v. Public Building Com. (1970), 46 Ill.2d 330, the creation of the driving range did not constitute a violation of the public trust. See 95 Ill. App.3d 824, 834.

Having concluded that the construction of the driving range was a proper park purpose it is apparent that if any impropriety occurred in connection with the project, it stemmed not from actions which exceeded the powers of the defendant commissioners and park district, but from an alleged failure to comply with the ordinances of the city of Chicago. The city of Chicago is not a party to this action, and plaintiffs do not assert that they have standing to act for the city. We know of no authority which gives these plaintiffs standing to seek an order requiring defendants who have taken action consistent with their statutory powers to seek the approval of another governmental unit which has not itself asserted jurisdiction in the matter.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

JUSTICE SIMON, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.