Last week saw two more important events in the on-going OPC saga:
· the oral arguments on the Protect Our Parks lawsuit, and
· the second consulting parties’ webinar as the FHWA rushes the Section 106 process to a seemingly preordained conclusion.
The Protect Our Parks lawsuit
Since the Protect Our Parks lawsuit was filed two years ago, JPW has continued to point to the significance of the public trust issue that is key to the lawsuit, along with the tightly related issues of fiduciary responsibility and responsible public stewardship. POP appealed the initial dismissal of its case to the U.S. Seventh Circuit Court of Appeals last July, and oral arguments on the case were heard by a three-judge panel on Thursday, May 21.
A good (albeit somewhat lengthy) summary of the argument presented by Richard Epstein, the lead POP attorney in the appeal, can be found in Epstein’s own recounting of the issues in the suit and also in the related federal regulatory reviews now underway. Courthouse News Service also provided general coverage of the hearing.
Interestingly, the members of the appellate panel repeatedly returned to the question of jurisdiction, that is, why this case is in federal court. Both POP and the City argued that the case is properly in federal court, something the City had never challenged. After the oral argument had adjourned, the panel asked both sides to submit additional briefs addressing the question of jurisdiction within two weeks.
FHWA steamroller advances
In the meantime, the FHWA’s rush to a judgement that seems destined to approve the OPC and related road changes with only token mitigation efforts continued with the second consulting parties’ webinar on Wednesday, May 20. The webinar presented what were described as the results of the on-line “Mitigation Survey” that the City conducted over 5 days following the first webinar on May 6. However, as JPW anticipated, significant portions of the survey results were simply suppressed. Only those results deemed acceptable by the FHWA and City were presented for discussion on May 20; all others were dismissed, without any information whatsoever being provided about the total number of responses submitted or the full scope and details of the suggestions made. JPW sent a follow-up letter to FHWA decrying this suppression of public information (see attachment below, at end of Update) and demanding that there be full disclosure of all comments and suggestions for resolving the adverse effects on Jackson Park for the third and final webinar meeting on June 17.
The Cultural Landscape Foundation offered another review of the May 20 webinar and of the overall situation.
Where things stand: While the conduct of the Section 106 review remains troublesome to say the least and while there are disturbing signals about other federal reviews to come (see below), Jackson Park is still untouched and there are many steps still to be taken. No construction can begin until all of the federal reviews are completed, and failure to conduct those reviews properly could result in further legal challenges. The POP lawsuit continues, with the real prospect of further appeal. Meanwhile, the context in which the current OPC plan was developed has changed drastically. Most immediately, there are uncertainties at every level about the impact of the pandemic on public and private finances alike; at the same time there are regular reminders that the effects of climate change, such as rising lake levels, cannot be ignored when it comes to lakefront development. JPW will continue to track developments, make salient comments, and invite interested others to join in also.
On other fronts
What is the “baseline”? While most attention is on the Section 106 review, the FHWA steamroller is also moving forward on another front. As Richard Epstein notes in his commentary linked above, the FHWA plans to circumvent what should be another key element of the federal review process, a required 4(f) review of the impact of the proposed road changes on Jackson Park. It justifies this by making the absurd argument that the proper “baseline” for the review is the configuration of the Park AFTER the OPC is in place and all of the road changes have occurred, not the configuration of the Park today. For more information on the 4(f) requirement, see “What is a ‘4(f)’ review?” on the JPW website
What is a “legacy” park? The Chicago Tribune has recently focused attention on the issue of public access to parks and open spaces during the pandemic. On its May 23 editorial page, it featured an op-ed by Ron Henderson, director of the Landscape Architecture and Urbanism Program at IIT. Professor Henderson distinguished between the city’s legacy parks and the newer parks built in the 21st century, noting their differing values in an era of social distancing.
“The legacy parks were designed as places of healthy respite and for personal encounters with trees and water and birds. The new parks were built for other purposes: spectacles of art, social density, crowds and active recreation. These new parks are also about commerce and capitalism — parks that, especially under former Mayor Rahm Emanuel, were expected to be profit centers leveraged by concessions and tourism.”
JPW submitted a follow-up letter to the Tribune, so far unpublished, so we quote it here:
“Jackson Park is one of Chicago’s foremost legacy parks, designed by Frederick Law Olmsted in the late 19th century to make spacious fields, tree-covered paths, local wildlife, and vistas of the lake available to all residents of the booming city. It is ironic then that Jackson Park’s legacy status is today under threat by the proposal to build the Obama Presidential Center on 20 acres at its center. When President Obama unveiled the plan for the OPC in May 2017, he said his aim was to create a Millennium Park-like experience on the South Side. The current proposal for the OPC will indeed transform Jackson Park, ending the quietude and spaciousness that have long been treasured, just as those characteristics are proving their civic importance and value. Such a loss is not necessary as the OPC could be reconfigured to have a less adverse effect on Jackson Park or could be constructed elsewhere on the South Side, with equal prominence and an equally positive impact on the surrounding communities. We urge the City and the Obama Foundation to reconsider their plan.”
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Brenda Nelms and Margaret Schmid
Jackson Park Watch
Attachment: 2020-05-25 JPW to FHWA
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