August 2021 - 33

fail to grapple with the possibility
that the relevant funds come from
a source other than tax dollars.
And that possibility isn't remote
- nearly a third of the City's revenue
comes from nontax sources....
These nontax sources are as varied
as licensing fees, parking tickets,
concessions contracts, and federal
and state grants.... It would be far
too simplistic to conclude that the
City is spending tax money on a
project simply because it is spending
some money on a project.
As a result, the court held the
mere status of individuals " as municipal
taxpayers is insufficient to
confer Article III standing. "
Private Property Right
In addition to claims under state
law, POP also had brought federal
claims against the City, alleging
violations of the Fifth and Fourteenth
Amendments. As cited by the court,
the Fifth Amendment provides:
" Private property shall not be
taken for public use, without just
compensation. " In pertinent part, the
Fourteenth Amendment states: " Nor
shall any State deprive any person of
property, without due process of law. "
In the opinion of the court, " Neither
of these claims can get off the ground
unless the plaintiffs prove that they
have a private property interest in
Jackson Park. "
In addition to curtailing
the
state's ability
to transfer
public
land to a private party, POP had argued
that the public trust doctrine
also conferred " a private property
right on members of the public. "
As members of the public, POP
claimed to be the intended " beneficiaries "
of Jackson Park, which the
City was required to " hold in trust
on the public's behalf. " According
to POP, this " beneficial interest " in
Jackson Park was " private property
that is protected by the United
States Constitution. "
The federal appeals court acknowledged
a beneficial interest
in a public park could conceivably
allege a sufficient property right to
establish a " cognizable injury " for
standing purposes. The federal appeals
court, however, found precedent
case law in Illinois that had
held " those owning land adjacent
to or in the vicinity of a public park
possess no private property right
in having the parkland committed
to a particular use. " Since adjacent
landowners held no protected
property
interest in public land,
the federal appeals court similarly
found POP had no property rights
in Jackson Park.
As characterized by the federal
appeals court, POP's Fifth
Amendment " takings " claim also
had alleged that the City was required
to pay POP " just compensations "
because " the Center does
not qualify as a public use. " The
court rejected this argument. Assuming
" the City's use agreement
with the Foundation qualifies as a
transfer to a private party, " citing
the U.S. Supreme Court's opinion
in Kelo v. City of New London,
the federal appeals court held " a
transfer to a private owner can still
be constitutional if it is done for a
public purpose " :
[T]he City's judgment that a
particular transfer and use has a
public purpose is entitled to deference.
It's hard to see, then, how we
could second-guess the City's determination
that building the Center
- with its museum, public library
branch, auditorium, athletic center,
gardens, and more - is a use
with public benefits.
In addition to the lack of a protected
property interest, the federal
appeals court also found POP's procedural
due process claim had failed
to " establish that the procedures
they received fell short of minimum
constitutional requirements " :
The City enacted four separate
ordinances approving
various
aspects of the Center. The votes
on those ordinances came after
multiple public hearings at which
residents could raise their concerns
about the City's intended plans.
And the Illinois General Assembly
amended the Illinois Park District
Aquarium and Museum Act
to explicitly authorize cities and
park districts to erect, operate, and
maintain " presidential libraries,
centers, and museums " in public
parks. 70 ILCS 1290/1.
As noted by the court, " a legislative
determination provides all the
process that is due.... If one legislative
determination is enough, then
five determinations are overkill. "
Having found POP's Fifth and
Fourteenth
Amendment claims
failed on the merits, the federal
appeals court affirmed the district
court's grant of summary judgment
for the City. In addition, the federal
appeals court vacated the district
court's summary judgment on the
public trust and ultra vires claims.
In so doing, the federal appeals
court held POP lacked " standing
to bring those latter claims in federal
court, and therefore, the district
court should have dismissed them
for lack of jurisdiction. "
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Sport, Recreation and Tourism
Management at George Mason University (jkozlows@gmu.
edu). Law review articles archive (1982 to present):
mason.gmu.edu/~jkozlows.
PARK S ANDRECRE AT ION . OR G | A UGUS T 2 0 2 1
| Parks & Recreation
33
http://mason.gmu.edu/~jkozlows

August 2021

Table of Contents for the Digital Edition of August 2021

August 2021 - Intro
August 2021 - Cover1
August 2021 - Cover2
August 2021 - 1
August 2021 - 2
August 2021 - 3
August 2021 - 4
August 2021 - 5
August 2021 - 6
August 2021 - 7
August 2021 - 8
August 2021 - 8a
August 2021 - 8b
August 2021 - 9
August 2021 - 10
August 2021 - 11
August 2021 - 12
August 2021 - 13
August 2021 - 14
August 2021 - 15
August 2021 - 16
August 2021 - 17
August 2021 - 18
August 2021 - 19
August 2021 - 20
August 2021 - 21
August 2021 - 22
August 2021 - 23
August 2021 - 24
August 2021 - 25
August 2021 - 26
August 2021 - 27
August 2021 - 28
August 2021 - 29
August 2021 - 30
August 2021 - 31
August 2021 - 32
August 2021 - 33
August 2021 - 34
August 2021 - 35
August 2021 - 36
August 2021 - 37
August 2021 - 38
August 2021 - 39
August 2021 - 40
August 2021 - 41
August 2021 - 42
August 2021 - 43
August 2021 - 44
August 2021 - 45
August 2021 - 46
August 2021 - 47
August 2021 - 48
August 2021 - 49
August 2021 - 50
August 2021 - 51
August 2021 - 52
August 2021 - 53
August 2021 - 54
August 2021 - 55
August 2021 - 56
August 2021 - Cover3
August 2021 - Cover4
https://www.nxtbook.com/nrpa/ParksRecreationMagazine/august-2021
https://www.nxtbook.com/nrpa/ParksRecreationMagazine/july-2021
https://www.nxtbook.com/nrpa/ParksRecreationMagazine/june-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/may-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/april-2021
https://ezine.nrpa.org/nrpa/ParksRecreationMagazine/march-2021
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