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Protect Our Parks, Inc. v. Chicago Park District

United States District Court, N.D. Illinois, Eastern Division

June 11, 2019

PROTECT OUR PARKS, INC., CHARLOTTE ADELMAN, MARIA VALENCIA, and JEREMIAH JUREVIS, Plaintiffs,
v.
CHICAGO PARK DISTRICT and CITY OF CHICAGO, Defendants.

          MEMORANDUM OPINION AND ORDER

          John Robert Blakey United States District Judge

         This dispute arises out of the City of Chicago (City) and the Chicago Park District's (Park District) efforts to bring the Obama Presidential Center (OPC) to the City's South Side. Plaintiffs sue to prevent construction of the OPC on a specific site within Jackson Park. [91] ¶ 1. Following this Court's ruling on Defendants' Rule 12(b)(1) motion to dismiss, [92], the parties completed full discovery and filed cross-motions for summary judgment, [112] [122]. On June 11, 2019, this Court held a hearing, and heard oral argument only on those issues and counts which required consideration beyond the briefs.

         This order addresses the merits of the case. In doing so, this Court faces the same challenge presented to the Illinois Supreme Court in Paepcke v. Public Building Commission of Chicago, 263 N.E.2d 11 (Ill. 1970). As they put it:

[T]his court is fully aware of the fact that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary, in good faith and for the public good, to encroach to some extent upon lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. The courts can serve only as an instrument of determining legislative intent as evidenced by existing legislation measured against constitutional limitations. In this process the courts must deal with legislation as enacted and not with speculative considerations of legislative wisdom.

Id. at 21. With this principle in mind and for the sound reasons set forth below, this Court grants Defendants' motion for summary judgment, [122], and denies Plaintiffs' motion for summary judgment, [112]. The facts do not warrant a trial, and construction should commence without delay. This case is terminated.

         I. Background

         The following facts come from Plaintiffs' Rule 56.1 statement of facts, [112-1], Defendants' Rule 56.1 statement of facts, [124], Plaintiffs' statement of additional material facts, [136], and Defendants' statement of additional material facts, [139].[1]

         A. The Parties

         Plaintiff Protect Our Parks, Inc. is a nonprofit park advocacy organization located in Chicago. [112-1] ¶ 1; [124] ¶ 1. Its members include individuals who reside in the City of Chicago and pay taxes to the City. Id. Plaintiff Adelman resides in Wilmette, Illinois. Id. Plaintiffs Valencia and Jurevis reside in the City of Chicago. Id.

         Defendant Park District exists as a body politic and corporate entity established by Illinois law, pursuant to the Chicago Park District Act, 70 ILCS 1505/.01, et seq. [112-1] ¶ 2; [124] ¶ 2. Defendant City is a body politic and municipal corporation. [112-1] ¶ 3; [124] ¶ 3.

         B. Selecting the OPC Site

         In March 2014, the Barack Obama Foundation (Foundation) initiated a search for the future site of the OPC. [112-1] ¶ 4. Both the University of Chicago and the University of Illinois Chicago (UIC) proposed potential locations. Id. ¶¶ 5, 19. UIC proposed two sites, generally located at: (1) the North Lawndale neighborhood; and (2) the east end of the school's campus. Id. ¶ 19; [126-2] at 105098. The University of Chicago proposed three sites, generally located at: (1) the South Shore Cultural Center[2]; (2) Jackson Park; and (3) Washington Park. [112-1] ¶ 5; [126-2] at 105098. At this time, the Park District owned both the Jackson Park and Washington Park parkland identified in the University of Chicago's proposal. [126-2] at 105098.

         In addition to these sites, nine entities from several locations throughout the country submitted proposals for the OPC, resulting in a total of 14 potential sites. [112-1] ¶ 25. The Foundation performed an analysis of the proposals from all submitting entities, evaluating the sites based upon the following criteria:

• Project Site and Access: desirability of site, surrounding community, control of site, local accessibility, global accessibility
• Project Execution: education impact, tourism impact, economic development impact, enhancements to the physical environment
• Community Engagement: engagement plan, quality/breadth of partners, means of engagement
• Indications of Support: partnership structure, alignment of mission, financial capacity.

Id.; [117-5] at 5. The Foundation assigned numerical scores to each site based upon the above evaluation criteria, and ranked the sites based upon these scores. [112-1] ¶ 26; [117-5] at 8-9. The Washington Park Site received the highest score at 122 out of 150; the Jackson Park site received the second highest score at 121 out of 150; and the UIC's proposed locations received a combined score of 120 out of 150, putting it in third place. Id.

         On July 29, 2016, the Foundation issued a press release announcing that it chose Jackson Park as the OPC site. [124] ¶ 13; [114-16].

         C. The OPC Site

         i. Site Location

         The site selected for the OPC within Jackson Park comprises 19.3 acres, or 3.5 percent of the 551.52 acres comprising Jackson Park. [124] ¶ 6. It lies on the western edge of Jackson Park and includes existing parkland bounded by South Stony Island Avenue to the west, East Midway Plaisance Drive North to the north, South Cornell Drive to the east, and South 62nd Street to the south. Id. ¶ 7. The OPC site also includes land within the park that currently exists as city streets: the portion of East Midway Plaisance Drive North between Stony Island Avenue and South Cornell Drive, and a portion of South Cornell Drive between East Midway Plaisance Drive South and East Hayes Drive. Id. As part of the OPC construction, these street portions would be closed and removed “to restore” the landscape's connection to the Lagoon and Lake.” Id. ¶¶ 7, 40.

         The site lies approximately half a mile from Lake Michigan, separated by: (1) six-lane Cornell Drive; (2) the lagoons and Wooded Island of Jackson Park; (3) Jackson Park's golf driving range and other grounds; (4) Lake Shore Drive; and (5) a pedestrian and bike path. Id. ¶ 7. It sits entirely above ground, although the parties dispute whether the site formerly sat beneath Lake Michigan. Id. ¶ 9; [136] ¶ 9 (Plaintiffs' response).

         ii. Site Components

         The OPC will consist of a campus containing open green space, a plaza, and four buildings: (1) the Museum Building; (2) the Forum Building; (3) a Library Building; and (4) a Program, Athletic, and Activity Center. [124] ¶¶ 23, 26. It will also include an underground parking garage. Id. ¶ 23.

         (Image Omitted)

         [91] ¶ 50.

         The Museum will comprise the OPC's principal building and “central mission.” [124] ¶ 24. It seeks to “tell the stories of the first African American President and First Lady of the United States, their connection to Chicago, and the individuals, communities, and social currents that shaped their local and national journey.” Id. ¶ 25. In doing so, the Museum will feature artifacts and records from President Obama's presidency, including items on loan from the National Archives and Records Administration (NARA). Id. ¶¶ 24-25; [125-5] (Exhibit D, Recital J).

         The Forum Building will contain collaboration and creative spaces, including an auditorium, meeting rooms, recording and broadcasting studios, and a winter garden and restaurant. [124] ¶ 27.

         The Library Building will include a branch of the Chicago Public Library and a President's Reading Room, featuring curated collections and displays of archival material, including digital access to Obama Administration records. Id. ¶ 28; [125-5] (Exhibit D, (Sub) Exhibit “C”).

         The Program, Athletic, and Activity Center will host public programs such as “presentations, events, athletics, and recreation.” [124] ¶ 29; [125-5] (Exhibit D, (Sub) Exhibit “C”).

         The OPC's green space will include features such as: (1) play areas for children; (2) “contemplative spaces for young and old”; (3) a sledding hill; (4) a sloped lawn for picnicking, recreation and community and special events; (5) walking paths; and (6) a nature walk along the lagoon. [124] ¶ 30. The Foundation will also “preserve and enhance” the existing Women's Garden and Lawn, keeping it open and available as green space. Id.

         iii. Site Accessibility

          According to the Use Agreement between the City and Foundation, discussed in detail below, the OPC buildings must “be open to the public at a minimum in a manner substantially consistent with the manner in which other Museums in the Parks are open to the public.” Id. ¶ 26; [125-5] (Exhibit D, § 6.2(a)(i)). All other portions of the OPC, such as the green space, must remain open to the public during regular Park District hours. [124] ¶ 30; [125-5] (Exhibit D, § 6.2(a)(ii)).

         The OPC will charge fees for entry into the Museum and for the parking garage. [112-1] ¶ 43. It will, however, provide free public access to many interior spaces within the OPC, including portions of the garden and plaza levels in the Museum Building and the top floor of the Museum Building. [124] ¶ 26. Moreover, the Foundation must operate the OPC in accordance with the free admission requirements of Illinois' Park District Aquarium and Museum Act, which mandates free admission to all Illinois residents at least 52 days out of the year and to all Illinois school children accompanied by a teacher. Id. ¶ 37. The admission fee policy for members of the public who are City residents, or low-income individuals and their families participating in the Supplemental Nutrition Assistance Program (or equivalent program), must also be “substantially consistent with comparable general admission fee policies” for such individuals maintained by “other Museums in the Park.” [125-5] (Exhibit D, § 6.10).

         D. OPC Municipal Approval Process

         i. Jackson Park's Creation

         In 1869, the General Assembly passed “An Act to Provide for the Location and Maintenance of a Park for the Towns of South Chicago, Hyde Park and Lake” (1869 Act). [112-1] ¶ 17; Private Laws, 1869, vol. 1, p. 358. The statute provided for the formation of a board of public park commissioners to be known as the “South Park Commissioners.” Id. The Act authorized these commissioners to select certain lands, which, when acquired by said commissioners, “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.” Private Laws, 1869, vol. 1, p. 360. Pursuant to this authority, the commissioners acquired the land now known as Jackson Park. [112-1] ¶ 17; [139] ¶ 17 (Defendants' response). The Illinois Legislature enacted the Park District Consolidation Act in 1934, which consolidated the existing park districts, including the South Park District, into the Chicago Park District. 70 ILCS 1505/1.

         ii. Transfer From the Park District to the City

          In early January of 2015-before the Jackson Park site selection-the Foundation expressed “concerns regarding the City's lack of control” over the proposed Jackson and Washington Park sites and indicated that “consolidating ownership of the sites and local decision-making authority in the City was a prerequisite to a successful bid.” [126-2] at 105098-99.

         Subsequently, in February 2015-in an open meeting during which members of the public spoke and submitted written comments-the Park District's Board of Commissioners voted to approve the transfer of “approximately 20 acres of property” located in Washington Park or Jackson Park to the City. [124] ¶ 11; [125-4] at 4, 11. Following this meeting, the OPC site's boundaries within Jackson Park shifted to the north and east. [124] ¶ 11.

         In February 2018, after a public meeting, the Board of Commissioners confirmed authority to transfer the reconfigured site to the City. Id.

         In March 2015, the City Council enacted an ordinance “authorizing the execution of an intergovernmental agreement between the City of Chicago and the Chicago Park District necessary to acquire selected sites in order to facilitate the location, development, construction and operation” of the OPC. [124] ¶ 12; [126-2] at 105096. In October 2018, following the Jackson Park selection, the City Council passed an ordinance finding it “useful, desirable, necessary and convenient that the City acquire the OPC site from the Park District” for the “public purpose” of constructing and operating the OPC. [124] ¶ 12; [125-5] at 85886 § 2.

         iii. City Council Approval

          In January 2018, the Foundation applied to the City for a zoning amendment to build the OPC on the Jackson Park site as a “planned development”-a designation required for certain institutional and campus-oriented projects. [124] ¶ 13; [126-3]. The Foundation also applied for approval under the City's Lake Michigan and Chicago Lakefront Protection Ordinance (LPO). [124] ¶ 13. The City's Department of Planning and Development (DPD) subsequently reviewed both applications and prepared a report (DPD Study) as required by the City's Municipal Code. Id. The DPD Study recommended approving both applications. Id.

         On May 17, 2018, the Chicago Plan Commission-which reviews proposals involving planned developments and the Lakefront Protection Ordinance within the City-held a public hearing on the Foundation's application for a planned development zoning amendment and for approval under the LPO. Id. ¶ 14; [126-5]. Representatives from the City and the Foundation testified at the hearing, and over 75 members of the public commented on the proposals. [124] ¶ 14. The presentation from DPD staff included a slideshow depicting various renderings of the OPC proposal. Id.

         At the conclusion of this hearing, the Plan Commission found that the OPC project conformed with the LPO and approved the Foundation's application under the LPO. Id. ¶ 15. In doing so, the Plan Commission adopted the DPD Study as its findings of fact. Id. Under the City's Municipal Code, the Plan Commission serves as the final decisionmaker as to whether a project complies with the Lakefront Plan of Chicago and the purposes of the LPO. Id.; Municipal Code of Chicago (MCC) § 16-4-100(e).

         Also at the May 17 hearing, the Plan Commission recommended approval of the Foundation's application for a zoning amendment. [124] ¶ 16. Again, the Plan Commission adopted the DPD Study as the Commission's own findings of fact. Id. Under the City's Municipal Code, after considering a zoning amendment application, the Plan Commission must refer the application to the City Council, which serves as the final decisionmaker on the amendment. Id.; MCC § 17-13-0607.

         Accordingly, on May 22, 2018, the City Council's Committee on Zoning, Landmarks and Building Standards held a public hearing to consider the zoning amendment. [124] ¶ 17. Following testimony from City and Foundation representatives and public comments, the Committee voted to recommend approval. Id. The next day, the full City Council approved the amendment, enacting an ordinance that authorized construction of the OPC as a Planned Development; this ordinance controls the size and layout of the OPC's buildings. Id. ¶ 18.

         In October 2018, the City Council considered and approved two additional ordinances for the OPC project. Id. ¶ 19. First, it considered the Operating Ordinance, which allows the City to accept title to the Jackson Park site from the Park District and to enter into agreements with the Foundation governing the Foundation's use of the site. Id. On October 11, 2018, the City Council's Committee on Housing and Real Estate held a public hearing on the Operating Ordinance, during which City and Foundation representatives testified about the ordinance and members of the public commented. Id. The Committee voted unanimously to recommend adopting the Operating Ordinance, and the full City Council unanimously approved it on October 31, 2018. Id.

         Second, the City Council considered an ordinance authorizing the City to vacate portions of East Midway Plaisance Drive South and Cornell Drive within Jackson Park for conversion into parkland as part of the OPC site. Id. ¶ 20. On October 25, 2018 the City Council's Committee on Transportation and Public Way held a public hearing on the ordinance, during which City and Foundation representatives again testified, and members of the public commented. Id. The Committee voted unanimously to recommend adopting the ordinance, and the full City Council unanimously approved it on October 31, 2018. Id.

         iv. The Use Agreement

         One of the agreements authorized by the Operating Ordinance includes the Use Agreement, which sets out the terms by which the Foundation may use Jackson Park for the OPC. Id. ¶ 21; [125-5] (Exhibit D). The Use Agreement does not transfer ownership of the OPC site, nor does it lease the site to the Foundation. See generally [125-5] (Exhibit D); [112-1] ¶ 46. Rather, section 2.1 of the Use Agreement provides the Foundation with the following rights with respect to the OPC site for a 99-year term:

(a) the right to construct and install the Project Improvements[3](including the Presidential Center);
(b) the right to occupy, use, maintain, operate and alter the Presidential Center Architectural Spaces[4]; and
(c) the right to use, maintain, operate and alter the Presidential Center Green Space and Green Space.[5]

[125-5] (Exhibit D, §§ 2.1-.2).

         The Foundation will construct the OPC's buildings at its own expense and upon completion, transfer ownership of the buildings and other site improvements to the City at no charge. Id. §§ 2.1, 4.4; [124] ¶ 34. The Foundation will also maintain the OPC site and buildings at its sole expense for the entire life of the Use Agreement. [124] ¶ 35; [125-5] (Exhibit D, §§ 2.2, 7.1). The City is not required to enter into the Use Agreement until the Foundation establishes an endowment for the OPC and the site, and confirms that it has funds or commitments sufficient to pay the projected construction costs. [124] ¶ 36.

         As to consideration, the Use Agreement provides:

The consideration for this Agreement is Ten and 00/100 Dollars ($10.00) payable by the Foundation on the Commencement Date, the receipt and sufficiency of which, when taken together with the construction, development, operation, maintenance and repair of the Presidential Center and the other Project Improvements by the Foundation, the vesting of ownership of the Project Improvements by the Foundation in the City (as contemplated herein), as well as the material covenants and agreements set forth herein to be performed and observed by the Foundation, are hereby acknowledged by the City.

[125-5] (Exhibit D, Art. III).

         With respect to operating the OPC, the Use Agreement prohibits the Foundation from using the OPC for political fundraisers or in any manner inconsistent with its status as a tax exempt entity under Section 501(c)(3) of the Internal Revenue Code. Id. at § 6.3(d); [124] ¶ 21. The Foundation must use revenues collected from general and special admission fees, parking and other visitor services, third-party use fees, food and beverage sales, and retail sales for the OPC's ...


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