Paepcke v. Public Bldg. Commission of Chicago

• Decision Date: 29 September 1970
• Docket Number: No. 43240,43240
• Citation: 263 N.E.2d 11,46 Ill.2d 330
• Parties: , 2 ERC 1291, 1 Envtl. L. Rep. 20,172 Elizabeth Nitze PAEPCKE et al., Appellants, v. The PUBLIC BUILDING COMMISSION OF CHICAGO et al., Appellees.
• Court: Illinois Supreme Court

Page 11

263 N.E.2d 11

46 Ill.2d 330, 2 ERC 1291, 1 Envtl.

L. Rep. 20,172

Elizabeth Nitze PAEPCKE et al., Appellants, v. The PUBLIC BUILDING COMMISSION OF CHICAGO et al., Appellees.

No. 43240.

Supreme Court of Illinois.

Sept. 29, 1970.

Calvin Sawyier and Richard L. Wexler, Chicago, for appellants.

Richard L. Curry, Corporation Counsel, Chicago, for appellee City of Chicago.

William R. Dillon, Chicago, for appellee Public Building Commission of Chicago.

James W. Coffey and John T. Mehigan, Chicago, for appellee Board of Education of City of Chicago.

Neil F. Hartigan and Harry R. Posner, Chicago, for appellee Chicago Park Dist.

George E. Bullwinkel and Richard Stillerman, Chicago (George W. Overton and Marshall Patner, Chicago, of counsel), amici curiae.

BURT, Justice.

Plaintiffs, who are citizens, residents, taxpayers and property owners of the city of Chicago appeal from an order of the circuit court of Cook County dismissing their complaint by which they sought to prevent defendants, Public Building Commission of Chicago, the City of Chicago, the Board of Education of Chicago and the Chicago Park District from implementing plans to construct school and recreational facilities in Washington and Douglas parks. This court has jurisdiction on direct appeal because of the constitutional questions involved.

The facts are to be gathered from statements in the complaint which are admitted by defendants' motion to dismiss and from joint exhibits admitted into evidence at the request of all of the parties. In 1869 the General Assembly passed 'An Act to Provide for the Location and Maintenance of a Park for the Towns of South Chicago, Hyde Park and Lake' which was approved and in force February 24, 1869. (Private Laws, 1869, vol. 1, p. 358.) The statute provided that five persons, to be appointed by the Governor, be constituted a board of public park commissioners for the towns in question to be known as the 'South Park Commissioners'. The act authorized the commissioners to select certain lands which are specifically described by metes and bounds and provided in section 4 thereof that the lands 'when acquired by said Commissioners, as provided by this act, shall be held, managed and controlled by them and their successors, as a public park, for the recreation, health and benefit of the public, and free to all persons forever.' Pursuant to the granted authority the commissioners proceeded to acquire, among other lands, those which presently constitute Washington Park which is now held by the Chicago Park District as successor to the South Park Commissioners. The deeds by which the property was originally acquired by the commissioners purport to convey an unrestricted title in fee simple without mention of park usage. Washington Park as presently constituted contains 371 acres. It is located on the south side of the city of Chicago and is bounded by 51st Street on the north, Cottage Grove Avenue on the east, 60th Street on the south and Martin Luther King Drive on the west.

In 1869, the same year in which the South Park Commission was created, the General Assembly passed an act entitled 'An Act to amend the charter of the city of Chicago, to create a board of Park Commissioners, and authorize a tax in the town of West Chicago, and for other purposes', approved and in force February 27, 1869. (Private Laws of 1869, vol. 1, p. 342.) By this legislation a board of public park commissioners to be known as 'The West Chicago Park Commissioners' was created with power and authority to acquire certain designated lands with the stipulation in section 5 thereof 'that said board shall have power, and it is made their duty and they are hereby authorized to select and take possession of, and to acquire by condemnation, contract, donation or otherwise, title forever in trust for the inhabitants, and for the public, as public promenade and pleasure grounds and ways.' After their appointment by the Governor the commissioners acquired, among other lands, those which now constitute Douglas Park, presently held by the Chicago Park District as successor to the West Chicago Park Commissioners. This park, consisting of 181.99 acres is situated on the west side of the city of Chicago bounded on the north by Roosevelt Road, on the east by California Avenue, on the south by 19th Street and on the west by Albany Avenue. The land comprising this park was acquired by 10 deeds, six originals and two reconstructions of which were received in evidence. The remaining deeds were not found in the records of the recorder due to the Chicago fire. Each of the six originals admitted was on the same printed deed form and contained the same restrictive language as that found in section 5 of the act as above quoted. In two of these the restrictive language had been crossed out. In the remaining four it had been unaltered. No restrictions appear in the reconstructed deeds.

The Public Building Commission of Chicago, at the request of the Board of Education of the City of Chicago has undertaken a program involving the construction, alteration, repair, renovation and rehabilitation of public schools in the city, together with park, recreational playground and other related public facilities which will be leased by the Building Commission to the Board of Education, the Chicago Park District and other governmental agencies. The commission has selected, located and designated sites within the territorial limits of the city of Chicago as sites to be acquired for the erection and construction of elementary, middle and high schools to serve about 30,000 pupils, together with park, recreational and playground facilities. Each of the sites has been recommended by the Department of Development and Planning of the City of Chicago in accord with the comprehensive plan for the city of Chicago and in cooperation with the Board of Education of the City of Chicago and also the Chicago Park District in connection with the sites in which the Chicago Park District is involved. Some of these sites have already been approved by the city council of the city of Chicago.

A site has been designated in Washington Park for the erection of a school-park facility. The Chicago Park District proposes to convey to the Public Building Commission of Chicago for such purposes a total of 3.839 acres located in the northwest portion of the park about 250 feet from the northern boundary. On 2.586 acres of this site the building commission proposes to construct a middle school for approximately 1500 students to be leased to the Board of Education of the City of Chicago. The remaining 1.253 acres would be utilized in the construction of a gymnasium and recreational facilities which will be leased to the Chicago Park District. Construction had started on this site at the time suit was filed but had not proceeded to a point where original use of the land would no longer be possible. Of the sites thus far selected by the Public Building Commission of Chicago and approved by the city council of the city of Chicago only the 2.6 acres in Washington Park involves property in a park which is to be used for school construction. No site has been designated in Douglas Park but one is under consideration at the present time.

Plaintiffs' complaint alleges a class action brought on behalf of three classes of citizens: (1) those named who are citizens, residents and taxpayers of the city of Chicago; (2) those named who are citizens, taxpayers and residents of areas of the city served by a large regional city park such as Washington Park and (3) those named who are citizens, taxpayers and residents of an area served by a large regional city park, such as Washington Park, and who own real property bordering on or in the immediate vicinity of said park in respect to which there is a plan to construct a schoolhouse within the boundaries of such park. It is plaintiffs' theory that the parks in question are so dedicated that they are held in public trust for use only as park or recreational grounds and that those of them who are property owners adjacent to or in the vicinity of a park dedicated by the acts of 1869 have a private property right to the continuation of the park use of which even the legislature cannot deprive them. They further contend that all plaintiffs who are citizens and residents of any area of the city have a public property right to enforce the public trust existing by reason of the dedication of the parks as aforesaid and to require that no change of park use be permitted because the legislature has not explicitly and openly so provided by statute. Additionally, plaintiffs contend that the Public Building Commission Act does not authorize construction by the commission of local school houses in Chicago's regional parks under the plan proposed by defendants and that controlling statutes make this scheme invalid for both the Board of Education and the Chicago Park District. Finally, it is alleged that the Public Building Commission Act is unconstitutional as being too vague and indefinite.

In sustaining defendants' motion to dismiss the complaint the trial court, in its judgment order, rejected all of plaintiffs' contentions and specifically found that plaintiffs in each of the three classifications asserted had no such interest in Washington Park or Douglas Park sufficient to enable or entitle them, or any of them, to maintain the action 'except as taxpayers.'

We think it is clear from the undisputed facts in this case that there has been a dedication by the General Assembly of the lands in question for use as public parks. This is so notwithstanding the fact that the deeds by which the South Park Commissioners and the West Chicago Park Commissioners obtained title did or did not contain any of the restrictive language found in the legislative enactments. The authority of the Commissioners in either case to receive title existed solely by virtue of the provisions of the...