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A Piece of Lakefront

The state has agreed to sell 30 acres of lakebed to Loyola University for a campus-expanding landfill. Some say it's a good deal for everyone. Others say it's a blatant betrayal of the public trust.

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Until July 29, you and every other citizen of Illinois owned equal shares in a 30-acre parcel of real estate near 6500 north, 900 west. That's at the bottom of Lake Michigan, just east of Loyola University's lakeshore campus. But you don't own it anymore. That afternoon, Governor James Thompson signed a bill authorizing the sale of the land to Loyola for $10,000, so that the university can fill 18 1/2 acres of it, expanding its campus by about a third.

To many environmentalists and lake lovers, this is a blatant and sinister land grab. Sierra Club state field representative Carolyn Raffensperger is always animated; on this subject she boils. "Why do we have to have the Sierra Club spending hundreds and thousands of dollars to say [in a wheedling tone]: 'Hey, please don't sell the lakefront, it belongs to the public'? Taking out one little piece and giving it to a private entity is a moral outrage!" It is also, in her view, a clear violation of the state's public trust doctrine and Chicago's lakefront protection ordinance.

Loyola's reply: Don't worry about who owns what, as long as the public gets a good deal--and it has. "The public gets a beach," a 1.7-acre addition to Hartigan Park, says James A. Reilly, Loyola's assistant vice president for public relations. "The public gets the use of something that wouldn't exist otherwise," a 35-foot-wide walkway along the lakefront edge, plus reasonable access to the rest of the lakefill. "The public gains a great deal and loses nothing of any significance."

Loyola's expansion is the largest proposed lakefill project in Chicago since 1939. How it is handled will set a precedent for the future treatment of the best thing about Chicago. The Bears, the blues, the Sears Tower, and the Board of Trade are small potatoes by comparison. Take away the lakefront, and you have, at best, Indianapolis. For a less impressionistic assessment, look at last year's informal poll of members of the Realty Club of Chicago, taken by developer Jared Shlaes. The median guesstimate was that, without the lakefront, Chicago real estate would be worth an average of 20 percent less.

Loyola's proposal has cleared its biggest hurdle by winning overwhelming approval in the state legislature. But the university still must convince five agencies that its idea is good for the lake and for the city: the Chicago City Council, the Chicago Plan Commission (which administers the lakefront protection ordinance), the Chicago Park District, the Illinois Department of Transportation, and the U.S. Army Corps of Engineers.

Many of the same people and groups who together battled successfully against Mayor Daley's airport-in-the-lake, and unsuccessfully against his McCormick-Place-on-the-lake, now find themselves on opposite sides of the Loyola lakefill question. The Sierra Club, the Lake Michigan Federation, Friends of the Parks, and the League of Women Voters adamantly oppose any increase in private ownership of the lakefront. The Open Lands Project and the Metropolitan Planning Council, although they prefer public ownership, have acceded to private ownership in this case--but only after they helped negotiate as many public-benefit amendments to the bill as they could. They now support the deal, with the proviso that the fill be made environmentally innocuous. With that same proviso, Alderman David Orr has endorsed the project. And Lois Wille--ironically, the author of the standard history of Chicago's lakefront, Forever Open, Clear and Free--now edits the Tribune's editorial page, which has backed Loyola and taunted the university's opponents.

"Clear the way for Loyola's landfill," the Trib opined April 13 of this year. "Eternal vigilance over Chicago's precious lakeshore is commendable, but this is not a case where undue worry is warranted. . . . It is not as if the state is losing anything. . . . This kind of project should be encouraged, not discouraged, especially by the city, and it deserves better than reflex opposition." On May 16, Crain's Chicago Business added its voice. Any "self-appointed guardian of Illinois' crumbling Rogers Park lakefront," the business sheet sneered, had better have compelling reasons for torpedoing this "cooperation for the public good."

Public good nothing, replied the copresidents of the League of Women Voters of Chicago. In a May 18 letter to state representative Alan Greiman, Jan Flapan and Marion Meyerson wrote: "To sell this portion of the lakebed which belongs to the public is not only offensive, but it would be robbing the citizens of Chicago of their rights to have and use the lakefront for their recreational purposes."

Who would have thought that 30 acres of underwater real estate could cause such a fuss?

The state of Illinois has sold off land before and it will again, but the bottom of Lake Michigan is special. The state holds it "in public trust" for its citizens, under an English common law doctrine that was well evolved centuries before any European had seen the Great Lakes. In those days, the king of England owned the land under the tidewaters. But the nascent "public trust doctrine" held that commoners had an inalienable right to boat and fish in the waters, regardless of who the monarch might give or sell them to.

(Whatever its other merits, the public trust doctrine is in some ways a lawyer's dream--it offers endless possibilities for argument. Unlike, say, the First Amendment--which itself supports a good-sized cottage industry--the public trust doctrine is not embodied in a fixed, definitive text. It is instead the ever-changing sum of generations of court decisions, in which judges have modified almost every nuance, like a gang of indefatigable tailors endlessly altering one garment.)

The doctrine itself came over on the Mayflower, but it got its first substantial retailoring under U.S. law courtesy of a brouhaha over Chicago's very own lakefront. This episode began during the 1869 session of the Illinois General Assembly, which met in an atmosphere of sleaze, corruption, and bribery malodorous enough to make Ed Meese look like Ralph Nader.

That year the lawmakers gave more than 1,000 acres of lake-bottom land right offshore from the Loop--almost the city's entire harbor--to the Illinois Central Railroad. In return they got $800,000 (the seed money for Chicago's park system). The city objected to what it called a "Lake Front Steal"; Governor Palmer vetoed the bill; but the lawmakers passed it over his veto. In 1873, the legislature reversed itself, and 19 years later the case wound up in the Illinois Supreme Court, with state, city, and railroad each contending that it alone owned the harbor.

In 1892, the supreme court declared the state the winner--sort of. It owned the lakebed, all right, but it wasn't free to do anything it wanted with it--like, say, auction it off to the highest bidder. The state's title, said the court, "is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. . . . The state can no more abdicate its trust over property in which the whole people are interested, . . . than it can abdicate its police powers in the administration of government and the preservation of the peace."

The all-important exceptions? Land grants for "wharves, piers, docks, and other structures in aid of commerce" were OK, as were grants for anything else as long as they did "not substantially impair the public interest in the lands and waters remaining." That may be a big enough loophole for Loyola to pass through, but the courts have boarded it up some in the years since 1892.

A century seems to have made little difference in state lawmakers' willingness to abdicate their trust: in 1963, the General Assembly gave U.S. Steel nearly 200 acres off the extreme south side of Chicago--for the princely sum of $19,640. Ten years later, thanks to the initiative of William J. Scott, then state attorney general, the state supreme court voided that deal because it violated the public trust doctrine. In People ex rel. Scott v. Chicago Park District the court tightened the loopholes for private ownership, in two ways:

(1) It broadened the public's rights. In these enlightened times, people are considered to be interested not just in navigation and fishing but also in recreation--as the decision read, in "bathing, swimming and other shore activities"--volleyball, maybe?

(2) It narrowed the private exceptions. Courts at various times had OK'd the creation of lakefills for certain purposes: to construct a water filtration plant (public), McCormick Place (sort of public), and the 1889 extension of Lake Shore Drive from Oak to Ohio streets (primarily public--the sale of filled land behind the drive to private interests was held by the court to be incidental). What these and other cases mean, said the Scott court in what is still the most recent word on the subject, is that when the state sells public trust land, the public benefit must be direct and primary. "In none of these cases . . . was a grant upheld where its primary purpose was to benefit a private interest."

Lake Michigan was already slowly rising in 1984 when Loyola finished its $5 million, multiple-use Edward Crown Center for the Humanities. The center (along with the university chapel and Cudahy Library, which were already there) sits hard against the lake; originally it sported a wide lakeside walkway built atop concrete rubble that was protected by sheet-steel pilings. The February 1987 storm that swamped Lake Shore Drive pounded the walkway and damaged some pilings; one section is now fenced off and unusable.

"The high water chewed up our lakefront," says Loyola's Reilly. "Our first impulse was to do something serious about that. Then, as we explored various ways to protect it, we realized that we could gain some space, too." About 5,000 students attend Loyola's 32-acre lakefront campus; 1,750 of them live there, too (up from 1,400 in 1978). The university unveiled its plan for a lakefill devoted to playing fields and open space in September 1987; this spring, state senator Arthur Berman, whose district includes the lakefront campus, introduced the necessary legislation in the General Assembly. The deal that evolved from that bill gives Loyola about 30 acres of Lake Michigan bottom immediately offshore of its current campus. In return Loyola will give:

(1) $10,000 to the state;

(2) its riparian rights (shoreline rights that might, for example, prohibit the construction of a pier) to some public body, probably the Chicago Park District;

(3) 1.7 acres of its completed lakefill to the Chicago Park District as an addition to the beach at Hartigan Park, just north of the campus;

(4) a 35-foot-wide walkway "for public use" along the lakefront edge of the new land, complete with overlooks at the north and south ends and connected to Hartigan Park on the north; and

(5) agreements that public access to the entire lakefill "shall not be unreasonably denied"; that it will remain open space (no stadiums or parking garages); and that the state can take the land back if it should ever fall into the hands of any entity other than a nonprofit educational institution.

In the likely event that Loyola won't need all 30 acres to build and protect its 18 1/2-acre landfill, by 1999 it is supposed to give the extra land back to the state--but a restrictive covenant will keep anyone from filling or building on it, so that the university can keep its campus on the lakefront.

A good deal for us? Not according to Loyola's critics. For starters, sniffs Sierra Club's Raffensperger, that $10,000 price tag is ridiculously low. "I would have bid $11,000." And even though Loyola expects to spend $6 million of its own money to make this now-unusable lake bottom into green space, Erma Tranter, executive director of Friends of the Parks, believes the land was drastically underpriced. The Park District, she observes, recently bought nearby Berger Park for $1 million an acre. (Reilly describes the $10,000 as "a fairly arbitrary figure" designed merely to cover state administrative costs.)

Nor are the riparian rights that Loyola is relinquishing likely to do the Park District much good, says Glenda Daniel of the Lake Michigan Federation. Under the restrictive covenant, the Park District, for instance, could never build a lakefront park off Loyola's lakefill. "We have those riparian rights," says Daniel, "but we can never use them" because of the covenant.

What bothers the critics most of all, though, is private ownership of part of the lakefront. "To deprive 3,000,000 residents of Chicago of the free and unrestricted use of this parkland to accommodate 5,000 students must be interpreted as a violation of the public trust," said Flapan and Meyerson in their letter. Henry Henderson (not related to the author), who was counsel for the mayor's Shoreline Protection Commission (now defunct), is now senior environmental lawyer in the city law department. He doesn't see why a lease of Park District land--which has been good enough for the Shedd Aquarium and its new addition--won't satisfy Loyola University. (The aquarium holds a Park District "permit" to use its land as long as it maintains the property and keeps it open to the public.) "As a matter of principle," he says, "that land should belong to the public."

Before people started building breakwaters, piers, and lakefills, southbound Lake Michigan currents carried pebbles, sand, and sediment from eroding North Shore bluffs down toward Gary--and replenished beaches along the way. Now such lakeshore projects are suspected of diverting (or in some cases trapping) that sand away from its natural destinations. A hard-edged lakefill may also reflect back waves, making them more energetic--and more destructive--elsewhere along the shore.

Loyola intends to avoid these problems. It has pledged to design its lakefill both to "absorb and dissipate wave energy" and to "maintain the free movement of sand from north to south along the shoreline." Its design is now being tested in a wave basin at the National Research Council of Canada in Ottawa; the tests and reports, and various consultants' reports on them, won't be complete until mid-October.

These tests and reports are crucial, because the public trust doctrine requires that any state grant "not impair the public's interest in the lands and waters remaining." Alderman Orr, who represents the lakefront campus in the City Council, was careful to endorse the project only on the condition that these issues be resolved. Illinois lawmakers were not so cautious. The bill they passed not only claims that the project will not impair other lands and waters, it also asserts, without evidence, that it will further protect the Lake Michigan shoreline.

In a June 3 letter, Paul Kakuris--the contentious president of Great Lakes Environmental Marine Ltd., a consulting firm, and now the head of one of the Chicago Park District's two teams of consultants--advised lawmakers and the governor that these environmental questions were by no means settled. He suggested that the land sale not be executed until the project had passed its environmental tests. "It was a useful suggestion," says Daniel, "and it didn't matter. I don't think Thompson paid any attention."

Everyone has always wanted a piece of Chicago's lakefront, from low-class ruffians like "Cap" Streeter to high-class ruffians like U.S. Steel. Frankly, Loyola looks better than many of the buyers who have tried (and succeeded) in the past. And even its bitterest critics appreciate Loyola's willingness to negotiate and compromise.

That willingness is all the more interesting since most observers--including Berman, the bill's sponsor--agree that Loyola could have clouted almost any bill through the legislature. It's a sizable, prestigious university; it also has the natural advantage of being a Catholic institution in a heavily Catholic town. And nearly three-quarters of the university's 78,000 alumni live within 50 miles of Chicago. According to Loyola, one of every ten physicians in metropolitan Chicago is a Loyola alum, and one of nine attorneys, one of three public school principals, and one of every two dentists.

More to the point, the state attorney general (Neil Hartigan), the speaker of the Illinois house (Michael Madigan), the majority leader of the state senate (Philip Rock), and the majority whips of both bodies all have degrees from Loyola University. Only one of the 16 Loyola alums in the General Assembly voted against the land-transfer bill.

"At first," says Dave Eubanks, manager of policy and planning for the Open Lands Project, "the bill had no formal provisions for public access to the lakefill. We went in and worked with Sidley & Austin [Loyola's lawyers in this matter]. We got the pathway connections. We got the walkway enlarged from 10 feet wide [to 35, but Open Lands originally preferred 100 feet]. We got a guarantee of public access to the entire lakefill. We got the pledge for no buildings to be built on it. We started at ground zero--there was none of this in there." Adds Mitchell Kardon, senior planner with the Metropolitan Planning Council, "We're very happy with the language, especially the amendments that strengthen public access and provide for a public-use zone designed to encourage public use."

Loyola's Reilly says that they meant to have many of these provisions in the bill, but because Berman had to introduce it hurriedly, he started out with a "shell bill" that they intended to add more to later. "We always thought these amendments were formalizing what we had in mind. [Potential critics] feel they now have guarantees we can't welsh on."

Of course, if Loyola had pursued a strategy of pure clout, the "civics"--those good-government and environmental groups that look askance at such transactions--would probably have formed a united front against a lakefront steal like the one in 1869. But Loyola's willingness to talk and deal--about almost anything except public ownership--put the civics in a strategic box. The groups could negotiate, trying to get the best deal for the public--and run the risk of legitimizing a serious infringement on the public trust doctrine. Or they could stand firm on principle, try to stop the deal altogether, and run the risk of seeing the project go through with fewer benefits to the public than they might otherwise have extracted.

Thus Loyola was rewarded for its reluctance to exercise its full clout. And the Open Lands Project and Metropolitan Planning Council emerged not only as prominent "negotiating" civics, but ultimately as supporters of the revised deal. "The political reality was that this project was going to happen," says Open Lands' Eubanks. "The question was how much public access would be allowed.

"Our attorney--and president--Jim Fox looked at the public trust doctrine, and we found that conveyance of lakefront land is allowed if there are significant public benefits." That's Loyola's theory, too. But didn't the Illinois Supreme Court say in Scott that the benefits have to be primary and direct, not just that there be a bunch of them?

Replies Fox: "I don't disagree with you, but I think dealing with this institution and the court system we have . . . bad facts make bad law." (In other words, courts are more likely to sympathize with a nonprofit educational institution than with a steel company.) He would prefer that the interpreters of the public trust doctrine flat out forbade transfers to private institutions, but the state supreme court has passed up opportunities to establish that strict criterion. Given that precedent, he figures that an educational institution trying to protect its own property would carry the day in court as it did in the legislature--leaving Open Lands with a noble posture but no goodies for the public.

"He [Fox] tried to be reasonable," says Raffensperger, "but there's nothing reasonable about selling these resources!" If the Loyola deal goes through, she sees it as a decisive precedent: public trust land going to a private institution. A door that's ajar is easier to open. Will the next request come from one of those north lakefront condos, wanting to build a private lakefill to protect its ill-chosen location? "The lakefront is priceless," says Tranter, "and we're starting to nibble away."

Fox has a different angle on the question of setting precedents. Given that Loyola would win anyhow, he aimed to make the deal so restrictive that it would be nearly useless to any other private body seeking a lakefill. No prospective builder could use this as a precedent unless it could, as he says, "find an educational institution, open to all, with a public- and a semi-public-use zone. . . . Erma is a great warrior. I consider myself a warrior, too, but also something of a strategist."

Happily for Loyola, this is not the first time a private institution of higher learning has gobbled up a piece of public trust land. In 1961, the General Assembly sold 152 acres to Northwestern University, which it filled for a major addition to its Evanston campus.

"I think Northwestern got a real deal," sighs Glenda Daniel. "No environmental groups existed then." The only public fuss came a few years after the land sale, when the university used sand from the Indiana Dunes as part of its fill. The sale was never challenged in court, so its value as a legal precedent remains unknown.

Opponents of the Loyola deal are quick to point out that the cases aren't exactly parallel. "We have a history in Chicago of 'Forever open, clear and free,'" says Tranter. "The North Shore doesn't have that tradition." In fact, its tradition seems to be aggressive private ownership and exclusion. Veteran lake watchers point to W. Clement Stone's successful scuttling of the federal Coastal Zone Management Act in Illinois during the 1970s (offering states planning grants on the condition that they guarantee some public access to shoreline areas), and to the astronomical beach parking fees Lake Forest charges nonresidents ($750 per year).

Chicago's quite different spirit can be traced back as far as 1836, when Gurdon Hubbard, William Thornton, and William Archer mapped out the lots to be sold to pay for the Illinois and Michigan Canal. Getting that canal built was more important then to the infant Chicago than it would be today to have, say, the entire Fortune 500 move to town. But these three men declined to sell the lakefront. On the map they scrawled, "Public Ground--A Common to Remain Forever Open, Clear and Free of any Buildings, or Other Obstruction whatever."

More recently the Chicago tradition was embodied in the city's 1973 Lake Michigan and Chicago Lakefront Protection Ordinance. The ordinance puts the Chicago Plan Commission in charge of approving any development near the lake. And first on the list of 14 basic policies meant to guide the commission in its decisions is this imperative: "Complete the publicly owned and locally controlled park system along the entire Chicago lakefront." This doesn't sound good for Loyola. But in practice a more decisive influence may be the recommendation of the city's planning commissioner.

For better or worse, since 1973 the Chicago tradition has existed almost exclusively on that piece of paper, and not on the lakefront itself. In 15 years the only significant addition to the north lakefront park system has been Berger Park, and that was the result of neighborhood pressure, not Park District initiative.

"I was involved back when we were doing that ordinance," says Fox. "It's been on the books all these years, and we haven't acquired any new property. So what are we talking about here? Is this a policy or a dream? If the Park District were going to go ahead and acquire it [Loyola's lakefront], I'd fight these people tooth and nail. If not, I need to get the best deal I can. I challenged the Park District: if you're going to do something, do it now. Because if you aren't, we have to go with the other side."

And is the "other side" really all that bad? On a purely physical and aesthetic level, Loyola's Loyola's lakefront will be an incomparably nicer place after the lakefill than it is now. It's not as though an existing park were being stolen from the people. In fact, the people are getting a bigger beach, a nice walkway, and the use (not to be unreasonably denied) of some playing fields, all at Loyola's expense.

The lakefill proposal is popular in David Orr's densely populated ward--which is the only other direction in which Loyola might expand. Although Alderman Orr says he supports "as much public ownership of the lakefront as possible," he adds: "I'm comfortable with the compromise and the narrowly drawn precedent that's been worked out."

So why kick about who holds the title? Isn't this, for all practical purposes, what the civics want--an open, clear lakefront that people can use? Why should the public care whether Loyola holds the title deed or a 99-year lease? Will that make any difference to the Rogers Park kid who will be able to ride her bike along the lake, stop, and look south to the Loop and dream?

"There is a difference," insists Henry Henderson, who doesn't see why Loyola should get a better deal than the Shedd Aquarium. "You can't get to that ideal state. They control access, they take precedence over public use. Northwestern is a precedent here--where public trust land was given to a private entity, which then restricts one of the rights specifically mentioned in the earliest formulations of the public trust doctrine--fishing!" (According to a Northwestern spokesperson, since 1986 the university has not allowed fishing in the lagoon portion of its lakefill because the area is heavily traveled, and the university fears that a fisherman might snag a passing bicyclist.)

So let's ask Reilly the same question--why should Loyola care whether it holds a title deed or a long-term lease? Then you begin to see the light. The issue is not open space, or "public-private partnership." For both sides, the issue is control.

"The Park District proposed that we build this and then give it to them," Reilly says, shaking his head in amazement. "We said, well, we don't know. We have a public trust doctrine of our own--can we really take our students' tuitions and donations and build a park for the city? So then they asked us to give them the walkway. This will be a public-use area, but it's hard to divide, hard to separate the responsibility. We're not interested in building it and giving it to them.

"If we turned [the lakefill] over to the Park District, it could do whatever it wanted--build tennis courts instead of a soccer field, or decide to have a theater on the lake. Our first priority is to protect the land, but this has to benefit our students. If we hand it over to another party to own, we have no control over it.

"It's like the softball schedule in Lincoln Park. If I see another team using a diamond in Lincoln Park, I can't go and tell them to get off."

Art accompanying story in printed newspaper (not available in this archive): illustration/Kurt Mitchell.

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