• SoSideN4Hope

POP lawsuit proceeds, further delaying OPC groundbreaking.

In May 2018, Protect our Parks (hereinafter “POP”) filed a lawsuit against the City of Chicago and the Chicago Park District alleging certain claims related to speculative environmental desecration, theoretical confiscation of public land, and hypothetical first amendment claims that may favor the OPC to the detriment of tax payers. In response, the City of Chicago and Chicago Park District filed a motion to dismiss. Both sides presented their respective positions in writing and at oral argument. There were amicus briefs filed on both sides.

On February 9, 2019, in a 21 page decision, US District Court Judge Blakey explained his reason for dismissal of five counts and why he is allowing one count to proceed. It should be noted that one of the dismissed counts, Count 6, was dismissed only for failure of ripeness, meaning the actual injury had not yet occurred. The judge stated that if issues related to first amendment violations became issues in the future that POP could bring this claim again at that time.

The single issue that is now ripe for ligation is whether the City of Chicago and the Chicago Park District violated the public trust doctrine. Judge Blakey ruled that the parties had standing to challenge the OPC’s location in Jackson Park under this doctrine and would be given an opportunity to litigate on the issue of whether the City of Chicago violated the public trust doctrine. Several property law scholars from well-respected law schools in across the country filed an amicus brief in support of the OPC in Jackson Park. Their brief intricately explained the public trust doctrine and the due process requirements that needed to be met before allowing the OPC in Jackson Park. You can find our summary of this brief, as well as the others submitted on behalf of the City and Park District here, or go directly to the brief here. Legal scholars agreed that the OPC did not violate the doctrine and urged the court to deny that part of POP’s Complaint.

The public trust doctrine is an age-old law that requires certain levels of scrutiny of developments based on whether the land being sought falls into three categories. The categories are (1) land that was previously underwater or landfill land; (2) land that is near the water; and (3) land that was never submerged and is not near water. The highest level of scrutiny belongs to land was previously underwater. The OPC location in Jackson Park falls into the second category and is subject to medium scrutiny. This means that the City of Chicago and the Chicago Park District must present evidence that shows due process by the Illinois general assembly and the City of Chicago. The central question is whether a proper number of hearings, public meetings and documents were produced to the Plan Commission and City Council that would have shown a significant enough public use and benefit that would justify allowing the OPC in Jackson Park.

Usually after initial motions have been decided, the next phase of litigation is discovery. Discovery is the process by which each side exchanges relevant documents that may help prove their case. In this case, Judge Blakey ruled on POP’s individual discovery requests, denying some outright and on others forcing the City of Chicago and Chicago Park District to comb their records for additional documents. Judge Blakey also set strict time periods for discovery and seems to be enforcing rigid deadlines to keep a tight leash on lag time.

The next hearing date is May 30, 2019. On May 30, the judge will decide whether there is enough evidence for trial or whether this case will be decided by summary judgement. This case will be decided by summary judgement if the judge finds that there is no genuine issue of material fact, meaning that under no set of facts presented can the judge find in favor POP on the issue of whether the public trust doctrine was violated.

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