This is the fourth of five posts that consider different models of standing to enforce public rights; here are links to the first, second, and third. These posts offer some reflections based on our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), which Steve Lubet generously introduced to readers of this blog.
In this post, as in much of both Lakefront itself and a different series of our recent blog posts (at the Volokh Conspiracy and collected here), we will consider Grant Park, the huge public space along Lake Michigan in the center of Chicago. It is essential to appreciate, at the outset, that Grant Park was saved from development—from being home to numerous museums or libraries, in particular—not by the public trust doctrine but, rather, by a different legal precept: the relatively unknown public dedication doctrine.
What is a public dedication? When new cities or subdivisions are laid out, potential purchasers of lots are commonly shown maps or plats of the planned development. These typically depict streets, parks, schools, or the like, projected as part of the development. Purchasers of lots rely on these maps or plats—and on the representations of such public amenities—in deciding whether to purchase.
And, of course, in deciding how much to pay: The representation of a nearby park or school may elicit a higher price; proximity to a busy street or commercial strip, a lower price. In its traditional form, the public dedication doctrine allows certain entities—the city, the original dedicator, or in special circumstances individual purchasers—to sue to enjoin deviations from the uses represented on the original map or plat.
In the case of the Chicago lakefront, the land south of Madison Street (here is a map from the reporter’s statement in the Lake Front Case, 146 U.S. 387, 397 (1892)) was developed by the commissioners of the Illinois and Michigan Canal, to whom the state had granted the land as a subsidy to encourage the canal’s construction. The land north of Madison (see another such map, id. at 392) was projected for development when the U.S. Government decided to abandon Fort Dearborn.
In the 1830s, to entice purchasers, the canal commissioners used maps that labeled the (southern-more) area east of Michigan Avenue “A Common to remain forever Open, Clear & free of any buildings, or other Obstructions Whatever,” or words to that effect. Around the same time, the United States produced a plat that identified the (northern-more) area east of Michigan Avenue as “public ground for ever to remain vacant of buildings.”
So, whether north or south of Madison Street, those who purchased land on the west side of Michigan Avenue had reason to expect that they would enjoy an unobstructed eastward view—that is, of the lake.
Some early suits challenging the construction of buildings in the protected area were brought in the name of the United States, on the theory that the government, as the dedicator of part of the area, retained an interest in seeing the restriction enforced. But by far the largest number of public dedication suits were brought by individuals owning property on the west side of Michigan Avenue.
The right of individual property owners to enforce such a public dedication was based on a composite of equity jurisprudence and a special rule of standing. The cause of action was grounded in familiar principles of equity: the property owners had relied to their detriment on the dedication, they had no adequate remedy at law, and the value of their property would be irreparably harmed by the erection of a building to the east. The standing rule was the somewhat arbitrary but perhaps-intuitive and, in all events, easily enforced principle that, as among the citizenry, only owners whose property directly abutted the dedicated area could sue. Those living a block away (such as on Wabash Avenue, to the west) or farther north or south, beyond the dedicated area, were out of luck.
Courts addressing public dedication controversies thus adopted an intermediate rule of standing with respect to the general public or private citizenry: A finite number of individuals could sue to enforce a public right. But unlike the special-injury rule of public nuisance, transplanted (at least in theory) to the public trust doctrine before 1970 (as discussed in our immediately preceding post), the identity of the citizens with standing was precisely rather than vaguely identified: Those who owned private property directly abutting the dedicated area could sue, without regard to whether their injury was in some sense “special.” Or, perhaps one could say that their injury was conclusively presumed to be special.
At least on the Chicago lakefront, the unique standing rule of the public dedication doctrine elicited a high level of enforcement activity. The owners of property on Michigan Avenue filed dozens of lawsuits, over decades, succeeding with some frequency. The most persistent litigator was Montgomery Ward, the catalogue merchant and (beginning in 1887) owner of an imposing set of buildings on the west side of Michigan Avenue, between Madison and Washington Streets, which served as the headquarters of his eponymous company. But both before Ward and after, others sued as well, including hotel owners—such as the forebears of Justice John Paul Stevens, owners of the Stevens Hotel, which would become known as the Conrad Hilton Hotel (and more recently the Hilton Chicago).
Ward’s efforts generated four Illinois Supreme Court decisions, from 1897 to 1910, that kept Grant Park largely free of structures for a century. His greatest success was in forcing the Field Museum of Natural History, created by a bequest from department store magnate Marshall Field, to be located south of Grant Park, rather than in its center, as city planners, including Daniel Burnham, had envisioned.
The public dedication standing rule helps tailor the reach of the doctrine. If a proposed violation of the dedication is minor or temporary, it is unlikely to elicit a lawsuit from an abutting property owner. Rational property owners will generally balance the violation’s projected impact on the value of their property against the costs of a lawsuit. (Admittedly, Ward became something of a fanatic, threatening to block tents from being erected by traveling circuses and political rallies, but, as we explain in Lakefront, he may have been worried about precedents.)
A related source of flexibility in the public dedication doctrine is the principle of unanimous consent. If all abutting owners give their consent to a violation of the dedication, it can go forward. The Art Institute (in the early 1890s) and the various structures of Millennium Park (more than a century later) were permitted on this basis.
All in all, the citizen-standing rule associated with the public dedication doctrine avoids the twin perils associated with the public trust doctrine, as we have described: underenforcement if only public officials are allowed to sue, and overenforcement if any taxpayer (including any advocacy group) has standing to sue.
This standing rule of the public dedication doctrine was far from perfect (we shift to the past tense because the Illinois Supreme Court repudiated the common-law version of the doctrine in 1970, in Paepcke v. Public Building Commission, which we discussed in our immediately previous post in this series, focusing on that decision’s treatment of the public trust doctrine). The injury to the general public from the violation of a dedication is often greater than that incurred by abutting landowners (and certainly than that suffered by any single such owner). So the select group of private citizens allowed to sue will not necessarily engage in litigation to a degree that protects the full extent of the public interest.
In addition, the interests of the abutting landowners will often diverge from those of the general public. Over time, the Michigan Avenue owners have shown hostility to baseball stadiums, band shells, and circus tents, presumably because these draw large and noisy crowds (which may affect the abutting owners’ property values). One suspects that the general public has different preferences.
Enforcement of a public dedication in the courts is also more likely where a judge identifies with the property owners and their reliance interests. This was often the case during the period of Ward’s extensive litigation and for many years afterwards. There are several reasons to believe that over time—for example, as knowledge of the original dedication fades away, and new and more diverse forms of ownership such as high-rise condominiums have entered the picture—such reflexive sympathy with private owners has become less certain.
Nevertheless, the public dedication doctrine, with its unique standing rule, reminds us that sometimes private interests can be enlisted to protect public values, and they may even prove to be especially effective in doing so.
Posted by Joseph D. Kearney and Thomas W. Merrill
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