Tuesday, March 5, 2019

Violating The Public Land Doctrine?

Image result for obama presidential library
Rendering of the Obama Presidential Center
Chicago, Illinois
Hello Everyone:

It is a lovely Tuesday afternoon and time to blog.  Actually, it is pretty gray and threatening to rain.  Regardless, today we are going to chat about ex-presidents.  Ex-presidents who build libraries. 

Former President Barack Obama wants to build his library and research in his hometown of Chicago.  The Obama Presidential Center is being designed by Tod Williams and Billie Tsien Architects with Michael Van Valkenburgh Associates and sited on 20 acres of Jackson Park.  However, last May, plans for the Center hit a major stumbling when a group of area preservationists sued the City of Chicago and the parks division over plans for the Center, due to open in 2021.  The group charged "...the Obama Foundation and the University of Chicago, the city planned to carve out 20 acres of Jackson Park to build the former president's library, violating the public trust doctrine--a thorny legal land-use principle ties to Chicago history (citylab.com; Feb. 21, 2019; date accessed Mar. 5, 2019).

On February 19, 2019, U.S. Judge John Robert Blakely issued a written ruling, siding with an environmental group Protect Our Parks, stating they had legal standing to go forward with a lawsuit but did toss out parts of the suit filed against Chicago and the Parks District (chicagotribune.com; Feb. 19, 2019; date Mar. 5, 2019).  This is important because it could delay construction for months and raise the question of "whether the $500 million sprawling presidential campus can built at on lakefront property in Jackson Park" (Ibid).  On major sticking point is "whether Chicago has legal standing to build the Obama center on public park property to begin with" (Ibid).  Herbert Caplan, the founder of Protect Our Parks, praised the ruling

...as a victory because it keeps out case alive.... We are not opposing construction of the Obama Presidential Center, as long as it's not in historic Jackson Park,...(Ibid)

Judge Blakely's ruling is a narrow victory for Protect Our Park and the three individuals how brought suit against the city and its parks department.  He wrote,

...Plaintiffs alleging that 'lands held in the public trust are imminently in danger of being altered by the action of the defendants' have identified a 'concrete injury that can be 'redressed by a favorable court decision....' (citylab.com; Feb. 21, 2019)

However, the case is not crystal clear. 
Kriston Capps writes, "The final verdict for the Obama Presidential Center will depend on a reading of the public trust doctrine, which is rooted in a U.S. Supreme Court case from 1892 about public and private rights to Chicago's lakefront" (citylab.com; Feb. 21, 2019).  The public trust is the result of the landmark decision in Illinois Central Railroad v. Illinois which grew out the struggles  over land use along the fringes of Lake Michigan (scholarlycommons.law.northwestern.edu; Mar. 5, 2019).

Further, this lawsuit arrives at a time when urban dwellers are reconsidering the promises cities are making in the name of developments.  "From Amazon's hasty departure from Queens to the backlash over Google's waterfront scheme for Toronto, people are elbowing their way into the promises that leaders and developers strike behind closed doors" (citylab.com; Feb. 21, 2019).

Image result for jackson park chicago
Aerial map of Jackson Park
Chicago, Illinois
Foes of the proposed $500 million center have based their objections on the site--prime territory in the historic park designed by Frederick Law Olmsted and Calvert Vaux in 1871.  Again, no one is opposed to the Obama Presidential Center on Chicago's South Side, but some feel it is dominating an existing community asset instead of creating a new one.  The question of what kind of asset is the Obama center has stayed with project since its introduction in 2015, near the end of the president's final term,  Herbert Caplan told CityLab,

That lakefront land is priceless and irreplaceable,... It enjoys a national and international reputation a twin of sorts to Central Park in New York. (citylab.com; Feb. 21, 2019)

The twin metaphor is an appropriate one because Olmsted and Vaux also designed Central Park in New York City.  Jackson Park was dedicated to Chicago following the historic World's Columbian Exposition in 1893.  Kriston Capps writes, "The park was established after a years-long struggle over Chicago's lakefront, which culminated in Illinois Central Railroad Co. v. Illinois,...((citylab.com; Feb. 21, 2019).  Chicago is the home of the modern public trust doctrine, an argument founded in Roman civil laws which puts "public land-use rights above private claims" (Ibid).  This doctrine governs everything from beach access (coastalreview.org; Sept. 29, 2016; date accessed Mar. 5. 2019) to wildlife conservation (wildlife.org; Sept. 2010; date accessed Mar. 5, 2019).  Protect Our Parks basis for their lawsuit is "...the construction of the Obama Presidential Center would violate the public's claim to Jackson Park" (citylab.com; Feb. 21, 2019).

Star Wars' father George Lucas ran into a similar  situation when he proposed to build his Museum of Narrative Art on lakefront land south of Soldier Field.  Mayor Rahm Emmanuel offered the land--lock, stock, and parking lots owned by the Chicago Parks District--to Mr. Lucas for one dollar (chicagotribune.com; May 21, 2014; date accessed Mar. 5, 2019).  The Lucas museum plans stalled after Friends of the Parks challenged the construction in 2015 on the grounds that the museum would violate the public trust doctrine.  Mr. Lucas will build the Museum of Narrative Art in Los Angeles, across the street from his alma mater, the University of Southern California (Fight On!).

Chicago's winning bid to host the Obama Presidential Center involved giving up land owned by the Parks District for a nominal leas.  This may have attracted the Obama Foundation who, like Amazon, sponsored a Bachelor-like contest that drew proposals from Honolulu (washingtonpost.com; Dec. 12, 2014; date accessed Mar. 5, 2019) to Harlem (chicagotribune.com; Dec. 10, 2014; date accessed Mar. 5, 2019).  The University of Chicago was so eager to host the library that it used the music of Soul legend Sam Cooke as a magnet.

Supporters of more competitive private deals for public land use, including Mayor Emmanuel, posit that "the public trust doctrine is prevent the city form finding more economically productive uses for land....  (citylab.com; Feb. 21, 2019).  An article in The University of  Chicago Law Review on the subject reads,

For environmentalists and preservationists who view private ownership as a source of degradation of our natural and historical resources, the public trust doctrine holds out the hope of salvation through what to a judicially enforced inalienability rule that locks resource into public ownership,... For those who view private property as the bulwark of the free enterprise system and constitutional liberty, the doctrine looms as a vague threat. (academiccommons.columbia.edu; 2004, date accessed Mar. 5, 2019)

Judge John Robert Blakely did not rule on the merits of the public trust argument.  He did, however, strike down other arguments contained in the lawsuit.  For example, "The judge ruled that the plaintiffs' claim that taxpayer funds would subsidize political speech at the Obama Presidential  relied on 'multiple levels of wild factual speculation'"  (citylab.com; Feb. 21, 2019).  Judge Blakely also dismissed the three anonymous individuals' standing and rejected their claim to aesthetic and environmental harm "from the center's construction."  (citylab.com; Feb. 21, 2019).  He set a short timeline for resolving the dispute.

Image result for chicago south side
Chicago's South Side

Nearly all of Chicago is in agreement that Obama center should be built on the South Side but there is resistance to both the Jackson Park site and the Obama Foundation's unwillingness to be a party to a community benefits agreement that would enhance the economic interests of nearby neighborhoods.  Zach Mortice recently reported for CityLab, that community advocates like Ja'Mal Green hope that imminent departure of Mayor Emmanuel (President Obama's former chief of staff) will raise the chances of the foundation entering into such agreement (citylab.com; Sept. 25, 2018; date accessed Mar. 5, 2019),

Beyond the South Side, there is broad support for the a version of the current scheme.  Thirteen other presidential libraries and the eleven museum that operate in Chicago parks joined to file amicus curiae brief on behalf of the University of Chicago and the Obama Foundation.  A spokesperson for the Obama Foundation told CityLab,

We are confident that out plan for the Obama Presidential Center is consistent with Chicago's rich tradition of locating world-class museum in its parks, and we look forward to developing a lasting cultural institution on the South Side. (citylab.com; Feb. 21, 2019)

Some of the details in the agreement that brought the Obama Presidential Center to Chicago remain shrouded in a municipal mystery.  Suffice it to say that the parties briefly considered Washington Park, another historically significant South Side site, that would have also carved out land from the park, even though the University of Chicago owns 11 acres of adjacent property.  The memorandum of understanding between the University and the Obama Foundation that led the Mayor and the Parks District to offer 20 acres in Jackson Park--at no cost--is not public.

Activists hope to come to an community benefits agreement, or try to understand why a $500 million development has to be sited in a public park.  The hope is that this will emerge during the discovery phase of the suit.  Right now no one is saying anything on the subject and President Obama is brushing off concerns of gentrification or displacement.

Charles Birnbaum, the president and CEO for the Cultural Landscape Foundation, told WTTW during an interview,

If the Obama Foundation and the University of Chicago succeed in taking some 20 acres of National Register-listed Jackson Park for the [Obama Presidential Center], what's to stop other powerful and well-connected interests from citing this precedent as justification for expropriating parkland elsewhere in Chicago and around the country?  (news.wttw.com; Feb. 18, 2019; date accessed Mar. 5, 2019)

This is just one of several arguments being fought around the United States and Canada.  Economic development decisions, inclusive planning are talking points for land-use battles in New York, Toronto, and Washington D.C.

President Barack Obama remains a liberal icon for his message of hope and change but it seems strange to lump him into the same category as corporate giants like Google, Apple, and Amazon.  However, accusations of secretive tactics, public land giveaways, and refusing to negotiate with representatives from the local communities sound familiar to activists who waged this battle.  The case is still under consideration but whatever the outcome, the case has the potential for future precedent.

No comments:

Post a Comment