On April 8, the Seventh Circuit Court of Appeals issued its latest opinion intentionally shielding construction of the Obama Presidential Center in historic Jackson Park from judicial oversight.
This opinion was passed by the Illinois State Legislature in 1869 with the condition that the lands surrounding Jackson Park “shall be held, managed, and administered by (the Park Commission) as a public park for the recreation, health, and benefit of the public.” The guarantee for the subsidy received by the government was watered down. And we'll make it free to everyone forever,” making three fatal mistakes in isolating the project from all substantive reviews.
First, the Center's creation of an initial 99-year “use” agreement is in direct violation of the public trust doctrine, which prohibits the outright transfer of public land to private institutions unless fair value is received. There is. Transferring ownership of the site required that the center had the funds on hand to both construct and maintain the site. The foundation had neither when it promptly felled hundreds of mature trees in August 2021 in a project that was delayed and over budget.
In exchange for building the center near underserved communities on the west side of Washington Park, the foundation and the city will grant the foundation the right to lease the Jackson Park site as 19.3 acres of prime parkland for $10 for 99 years. A sweet agreement was reached in which the delegation was delegated to the government. Express gift of public trust land. how? By relabeling the original lease as a “use” agreement to avoid judicial scrutiny. The opinion points out that “ownership” of the center remains with the city, even though virtually 100% of the economic profits were donated to the foundation in violation of the terms of the 1869 grant, and its blatant Ignoring the cheating.
how? By engaging in intellectual jiu-jitsu and concluding that the true beneficiary of a transaction determined by the Foundation down to the last detail is the general public. The Illinois Supreme Court has long held that the public trust doctrine has “meaning and vitality” only when the public is in a position to enforce it. But the court avoided meaningful review, saying the city's 2015 Center Ordinance and 2016 Illinois Museum Act bless the deal, allowing it to avoid all constitutional constraints binding the political branches.
Second, the 2019 basic agreement between the city and the foundation only makes things worse. The basic agreement stipulated that the site would be transferred to the Foundation only if sufficient construction funds were received and donations were received from the Foundation for operation and maintenance. As of August 2021, the cost of the project had ballooned to more than $700 million.
At the time, the foundation had earmarked less than $700 million for construction. It also adopted a unique accounting practice that treats a $1 million donation in 2021 as a full contribution to the fund, with additional funding to be raised in the future. When the plaintiffs requested an amendment to the complaint to challenge these tactics, the district court ruled that the basic agreement between the city and the foundation does not allow third-party lawsuits, and the lawsuit was filed in less than a day. was rejected.
The problem is that the plaintiffs did not sue based on the contract, but clearly as taxpayers against the waste of public resources. The opinion's discussion of the district court's hasty decision states, “Based on the ownership of public funds and the obligation to replenish the treasury with deficiencies created by misappropriation, This undermined an important judicial precedent that clearly states that the use of about it. ” Thus, the Seventh Circuit expressed anathema to any public effort to open the books to provide public transparency.
Third, regarding environmental issues, the federal government initially stated that the designated project would be to build a center in Jackson Park with accompanying roads and other adjustments. Early reviews pinpointed the negative historical, aesthetic, and environmental impacts on Frederick Law Olmsted's precious gems. But the opinion ignores both Olmsted and the large-scale destruction of roads, trees, and habitat, and calls it a “significant federal disaster” causing “significant” damage that requires a full consideration of environmental impacts. refused to treat it as a “measure.” Instead, the opinion argued that building the center was a “local” effort because the federal government could not decide where the center would be built or how it would be managed. This ignores the simple fact that the federal government is always allowed to effectively block unsuitable projects, even if it cannot tell cities to abandon or relocate them. As a result, this ordinance became a mere shell.
Worse, the opinion ignores the Supreme Court's canonical decision in Overton Park v. Volpe (1971), which requires the Center to conduct a “thorough and thorough investigation,” and The decision was pathetically delayed. Projects will only be approved if there are “prudent and viable alternatives” to the land use.
Sadly, 17 months after the initial critical review, the federal agency and the city, without any notice or additional hearing, redefined the project to no longer cover the construction of the center and the Jackson We decided to only cover roadwork fixes in and around the park. This subtle tactic was employed by the Opinion to prevent consideration of alternatives for the center's location.
The opinion begins by saying that “we expect the current decision to represent a final determination” of the case, which began in 2018. Unless such decisions fail to protect communities or the environment or impede transparency in such transactions.
Richard A. Epstein is a professor at New York University School of Law and a senior lecturer at the University of Chicago. Michael Rachlis is a partner in the Chicago law firm of Rachlis Duff & Peel, LLC. They are representing Protect Our Parks Inc. and other plaintiffs in the lawsuit against the Obama Presidential Center.
