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Old Posted Sep 24, 2018, 12:18 AM
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Mr Downtown Mr Downtown is offline
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One of the frustrations of our common-law system is that there's no list you can consult showing exactly what is and isn't allowed. Instead, common law evolves as society confronts new challenges, and we have to decide which precedents offer the proper analogy. As for the public-trust doctrine in Illinois, we know that lakebed can be sold to adjacent landowners to finance and allow for the construction of Lake Shore Drive, but can't be sold to the Illinois Central Railroad for a mere locomotive shop. It can't be sold to U.S. Steel for expansion of South Works, and can’t be sold to Loyola University for a college campus, even one with a public park along the lakeshore. (A similar sale to Northwestern in 1961 was never challenged). It can be leased for McCormick Place, and can be used for Soldier Field. The other museums in Burnham Park were built prior to the expansion of the doctrine in the 1960s, and so far as I know were never challenged.

The decision denying Loyola University public trust property suggests that a mere public purpose or generous public use policy isn’t enough to overcome the doctrine, and that control is as important as purpose. See Lake Mich. Fed. v. US Army Corps of Engineers, 742 F. Supp. 441 (N.D. Ill. 1990). The 297-year Lucas lease might have passed muster, but the city called the whole thing off rather than show the documents to the federal court.

Now none of this is relevant to the Obama Center, which (like Notebaert, DuSable, or Science & Industry) is not going on public trust land. We know from Paepcke v. Public Building Comm., 46 Ill. 2d 330 (1970) that there's no problem with a local park district turning over parkland for other public purposes, including schools, and that the determination is generally one for the legislature, not the courts. The Museums Act amendments passed in 2016 would seem to cover the matter. The Protect Our Parks lawsuit is apparently based on due process claims (I have not read the pleadings). As I've said before, I'm not optimistic about POP's chances.
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