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09/25/96 ALBERT STEIER v. BATAVIA PARK DISTRICT

September 25, 1996

ALBERT STEIER, JR., WILLIAM RUBY AND JAMES O. TULLY, PLAINTIFFS-APPELLANTS,
v.
BATAVIA PARK DISTRICT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 93--MR--414. Honorable R. Peter Grometer, Judge, Presiding.

Presiding Justice McLAREN delivered the opinion of the court. Geiger, J., concurs. Justice Hutchinson dissenting.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

Plaintiffs, Albert J. Steier, Jr., William G. Ruby, and James D. Tully, appeal the trial court's order denying both their motion for summary judgment and objections to affidavits filed by defendant, the Batavia Park District (park district), and granting the defendant's cross-motion for summary judgment declaring valid the defendant's "Amended Ordinance Limiting the Use of Jet Skis " (Ordinance) (see Batavia Park District Amended Ordinance Limiting the Use of Jet Skis, Ordinance No. 101 (eff. July 18, 1989)). We reverse.

Initially, we note "Jet Ski" is a registered trademark of a particular manufacturer's brand of "personal watercraft." Therefore, to avoid contributing to the dilution of a registered trademark, we will use the term "personal watercraft."

The defendant is an Illinois municipal corporation organized under the authority of the Park District Code (Code) (see 70 ILCS 1205/1--1 et seq. (West 1994)). The defendant has jurisdiction over the portion of the Fox River referred to by the parties as the "Batavia section." Both parties agree the Batavia section lends itself to various recreational uses including boating. On April 7, 1975, the defendant applied to the Army Corps of Engineers (Corps) for a permit to build a boat launch on the Fox River. The Corps issued defendant a building permit. This permit included provisions prohibiting the defendant from (1) infringing on any federal, state, or local law or regulation; (2) preventing the "full and free use by the public" of the navigable waters of the Fox River (see 70 ILCS 1205/11.1--3(f) (West 1994)); and (3) unreasonably interfering with navigation by the existence or use of the launch. Subsequently, the defendant built the launch.

In 1987, a number of Batavia residents began complaining about personal watercraft and the manner in which they were being operated in the Batavia section. Batavia residents complained personal watercraft produced excessive noise, tended to congregate in the Batavia section of the river, caused excessive wakes, and disrupted canoeing and fishing. In addition, Batavia residents complained personal watercraft users travelled at up to 40 miles per hour, circled boats, cut in front of canoeists, jumped out of the water, and performed figure eights and sharp turns. Further, residents complained that they had difficulty hearing each other speak over the noise of the personal watercraft. In response to the complaints, the defendant park district enacted the following ordinance to address these complaints:

"It shall be unlawful for any person to use, or attempt to use, the Park District Launch for the purpose of launching or removing jet skis [personal watercraft] on or from the Fox River, except for the following times and only when the Park District Launch is opened generally to the public:

Wednesday 1 p.m. to 9 P.M.

Saturdays Noon to 5 P.M."

On September 21, 1993, the plaintiffs filed a complaint seeking a declaratory judgment that the Ordinance was "void and of no effect." The trial court granted the defendant's motion to dismiss two of the original plaintiffs, Fox Valley Personal Water Craft Club and the National Marine Manufacturers, for lack of standing. We note the defendant did not raise an objection to the standing of the present plaintiffs, Steier, Ruby, and Tully. In addition, the trial court denied the defendant's motion to dismiss the complaint. The parties then filed cross-motions for summary judgment. The parties agreed no genuine issue of material fact existed and the trial court should decide the matter based on the evidence submitted to date which included depositions, affidavits, and other exhibits.

After determining the evidence presented no genuine issue of material fact, the court found: (1) the Batavia section is a "navigable highway"; (2) the defendant has the authority to operate and regulate the launch under the Code; (3) no federal law prohibits the restrictions contained in the Ordinance; and (4) the Ordinance neither exceeds the defendant's authority under the Code, nor is it an unreasonable restriction on navigation of the Batavia section. Therefore, the trial court granted the defendant's cross-motion for summary judgment. This appeal followed.

On appeal, the plaintiffs essentially argue: (1) the defendant lacked authority to enact the Ordinance; (2) the Ordinance violates the commerce clause of the United States Constitution (U.S. Const., art. I, ยง 8, cl. 3) because it prohibits access to a navigable waterway; (3) the Ordinance violates Illinois law because it is unreasonable and arbitrary; and (4) the affidavits submitted in support of the reasonableness of the Ordinance do not comply with Supreme Court Rule 191 (see 145 Ill. 2d R. 191).

Initially, we must address the defendant's contention that the plaintiffs lack standing to challenge the Ordinance. We agree with the plaintiffs that this issue is waived because the defendant failed to raise it prior to this appeal. As an affirmative defense, standing must be raised within the time for pleading or the issue is waived on appeal. In re Marriage of Schlam, 271 Ill. App. 3d 788, 796, 207 Ill. Dec. 889, 648 N.E.2d 345 (1995), citing 735 ILCS 5/2--619(a)(9) (West 1994). We hold that, because defendant failed to contest plaintiffs' standing when challenging the standing of the plaintiff organizations, the issue is waived. We will, therefore, address the merits.

Summary judgment is proper where no genuine issue of material fact exists and the question before the court is solely a matter of law. 735 ILCS 5/2--1005(c) (West 1994); Lake County Public Building Comm'n v. City of Waukegan, 273 Ill. App. 3d 15, 18, 209 Ill. Dec. 830, 652 N.E.2d 370 (1995). On appeal, we must determine whether the trial court correctly found that there were no genuine issues of material fact and, if not, whether the trial court correctly entered judgment as a matter of law. Lake County, 273 Ill. App. 3d at 18. We review the trial court's order de novo. Lake County, 273 Ill. App. 3d at 18.

The plaintiffs argue the trial court erroneously found the defendant had the authority to enact the Ordinance under the Code. The plaintiffs urge us to strictly construe authorizing legislation against the defendant because the defendant is a nonhome rule entity. Accordingly, the plaintiffs claim the ordinance violates the Illinois and federal policy of the full and free use by the public of all navigable waters. The defendant acknowledges it is a nonhome rule entity. However, the defendant ...


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