No. 2--95--1397
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
ALBERT STEIER, JR., WILLIAM ) Appeal from the Circuit
RUBY and JAMES O. TULLY, ) Court of Kane County.
)
Plaintiffs-Appellants, )
) No. 93--MR--414
v. )
)
BATAVIA PARK DISTRICT, ) Honorable
) R. Peter Grometer,
Defendant-Appellee. ) Judge, Presiding.
_____________________________________________________________
PRESIDING JUSTICE McLAREN delivered the opinion of the
court:
Plaintiffs, Albert J. Steier, Jr., William G. Ruby, and James
D. Tully, appeal the trial court's order denying both their motion
for summary judgment and objections to affidavits filed by
defendant, the Batavia Park District (park district), and granting
the defendant's cross-motion for summary judgment declaring valid
the defendant's "Amended Ordinance Limiting the Use of Jet Skis"
(Ordinance) (see Batavia Park District Amended Ordinance Limiting
the Use of Jet Skis, Ordinance No. 101 (eff. July 18, 1989)). We
reverse.
Initially, we note "Jet Ski" is a registered trademark of a
particular manufacturer's brand of "personal watercraft."
Therefore, to avoid contributing to the dilution of a registered
trademark, we will use the term "personal watercraft."
The defendant is an Illinois municipal corporation organized
under the authority of the Park District Code (Code) (see 70 ILCS
1205/1--1 et seq. (West 1994)). The defendant has jurisdiction
over the portion of the Fox River referred to by the parties as the
"Batavia section." Both parties agree the Batavia section lends
itself to various recreational uses including boating. On April 7,
1975, the defendant applied to the Army Corps of Engineers (Corps)
for a permit to build a boat launch on the Fox River. The Corps
issued defendant a building permit. This permit included
provisions prohibiting the defendant from (1) infringing on any
federal, state, or local law or regulation; (2) preventing the
"full and free use by the public" of the navigable waters of the
Fox River (see 70 ILCS 1205/11.1--3(f) (West 1994)); and (3)
unreasonably interfering with navigation by the existence or use of
the launch. Subsequently, the defendant built the launch.
In 1987, a number of Batavia residents began complaining about
personal watercraft and the manner in which they were being
operated in the Batavia section. Batavia residents complained
personal watercraft produced excessive noise, tended to congregate
in the Batavia section of the river, caused excessive wakes, and
disrupted canoeing and fishing. In addition, Batavia residents
complained personal watercraft users travelled at up to 40 miles
per hour, circled boats, cut in front of canoeists, jumped out of
the water, and performed figure eights and sharp turns. Further,
residents complained that they had difficulty hearing each other
speak over the noise of the personal watercraft. In response to
the complaints, the defendant park district enacted the following
ordinance to address these complaints:
"It shall be unlawful for any person to use, or attempt
to use, the Park District Launch for the purpose of
launching or removing jet skis [personal watercraft] on
or from the Fox River, except for the following times and
only when the Park District Launch is opened generally to
the public:
Wednesday 1 p.m. to 9 P.M.
Saturdays Noon to 5 P.M."
On September 21, 1993, the plaintiffs filed a complaint
seeking a declaratory judgment that the Ordinance was "void and of
no effect." The trial court granted the defendant's motion to
dismiss two of the original plaintiffs, Fox Valley Personal Water
Craft Club and the National Marine Manufacturers, for lack of
standing. We note the defendant did not raise an objection to the
standing of the present plaintiffs, Steier, Ruby, and Tully. In
addition, the trial court denied the defendant's motion to dismiss
the complaint. The parties then filed cross-motions for summary
judgment. The parties agreed no genuine issue of material fact
existed and the trial court should decide the matter based on the
evidence submitted to date which included depositions, affidavits,
and other exhibits.
After determining the evidence presented no genuine issue of
material fact, the court found: (1) the Batavia section is a
"navigable highway"; (2) the defendant has the authority to operate
and regulate the launch under the Code; (3) no federal law
prohibits the restrictions contained in the Ordinance; and (4) the
Ordinance neither exceeds the defendant's authority under the Code,
nor is it an unreasonable restriction on navigation of the Batavia
section. Therefore, the trial court granted the defendant's cross-
motion for summary judgment. This appeal followed.
On appeal, the plaintiffs essentially argue: (1) the defendant
lacked authority to enact the Ordinance; (2) the Ordinance violates
the commerce clause of the United States Constitution (U.S. Const.,
art. I, §8, cl. 3) because it prohibits access to a navigable
waterway; (3) the Ordinance violates Illinois law because it is
unreasonable and arbitrary; and (4) the affidavits submitted in
support of the reasonableness of the Ordinance do not comply with
Supreme Court Rule 191 (see 145 Ill. 2d R. 191).
Initially, we must address the defendant's contention that the
plaintiffs lack standing to challenge the Ordinance. We agree with
the plaintiffs that this issue is waived because the defendant
failed to raise it prior to this appeal. As an affirmative
defense, standing must be raised within the time for pleading or
the issue is waived on appeal. In re Marriage of Schlam, 271 Ill.
App. 3d 788, 796 (1995), citing 735 ILCS 5/2--619(a)(9) (West
1994). We hold that, because defendant failed to contest
plaintiffs' standing when challenging the standing of the plaintiff
organizations, the issue is waived. We will, therefore, address
the merits.
Summary judgment is proper where no genuine issue of material
fact exists and the question before the court is solely a matter of
law. 735 ILCS 5/2--1005(c) (West 1994); Lake County Public
Building Comm'n v. City of Waukegan, 273 Ill. App. 3d 15, 18
(1995). On appeal, we must determine whether the trial court
correctly found that there were no genuine issues of material fact
and, if not, whether the trial court correctly entered judgment as
a matter of law. Lake County, 273 Ill. App. 3d at 18. We review
the trial court's order de novo. Lake County, 273 Ill. App. 3d at
18.
The plaintiffs argue the trial court erroneously found the
defendant had the authority to enact the Ordinance under the Code.
The plaintiffs urge us to strictly construe authorizing legislation
against the defendant because the defendant is a nonhome rule
entity. Accordingly, the plaintiffs claim the ordinance violates
the Illinois and federal policy of the full and free use by the
public of all navigable waters. The defendant acknowledges it is
a nonhome rule entity. However, the defendant argues section 11.1-
-3(f) of the Code provided the power to enact the Ordinance at
issue. See 70 ILCS 1205/11.1--3(f) (West 1994).
It is well settled that a park district is a nonhome rule
municipal entity (Ill. Const. 1970, art. VII, §8; Springfield Park
District v. Buckley, 140 Ill. App. 3d 524, 527 (1986)) and, thus,
has no inherent power. Ross v. City of Geneva, 71 Ill. 2d 27, 31
(1978). Instead, a park district has only the powers delegated to
it by the legislature. Ross, 71 Ill. 2d at 31; Springfield Park
District, 140 Ill. App. 3d at 527. Moreover, statutes which grant
power to a nonhome rule entity are construed strictly against the
entity which claims the right to exercise the power. Ross, 71 Ill.
2d at 31; Village of Bolingbrook v. Citizens Utilities Co., 267
Ill. App. 3d 358, 359 (1994).
Section 11.1--3(f) of the Code authorizes park districts:
"To license, regulate, and control the use and operation
*** of all water-borne vessels in the harbor and within 1000
feet of the outer limits of the harbor, or otherwise within
the jurisdiction of the park district, except that such park
district shall not forbid the full and free use by the public
of all navigable waters, as provided by Federal law." 70 ILCS
1205/11.1--3(f) (West 1994).
The Code defines a harbor as follows:
"The term 'harbor', as used in this article includes
harbors, marinas, slips, docks, piers, breakwaters, and all
buildings, structures, facilities, connections, equipment,
parking areas and all other improvements for use in connection
therewith." 70 ILCS 1205/11.1--1 (West 1994).
After reviewing the record, we find no evidence to support the
defendant's contention that section 11.1--3(f) of the Code
authorized the defendant to enact the Ordinance at issue. Nothing
in the record supports the defendant's position that the Batavia-
Fox River launch is a "harbor" within the meaning of the Code.
Because there is no evidence that the Batavia section of the Fox
River is a harbor, section 11.1--3(f) does not grant the defendant
the power to "regulate[] and control" the use of the launch. 70
ILCS 1205/11.1--3(f) (West 1994).
In addition, the plaintiffs argue section 11.1--3(f) did not
provide the defendant with the power to enact the Ordinance because
the Ordinance prohibits "the full and free use by the public of all
navigable waters, as provided by Federal law." 70 ILCS 1205/11.1--
3(f) (West 1994). The defendant argues that the Ordinance is a
reasonable regulation of a navigable water and thus does not
violate federal law. We agree with the plaintiffs.
It is well established that under the commerce clause of the
United States Constitution (U.S. Const., art. I, §8, cl. 3) the
federal government has the power to regulate navigable waters.
Kaiser Aetna v. United States, 444 U.S. 164, 173-74, 62 L. Ed. 2d
332, 341-43, 100 S. Ct. 383, 389-90 (1979); City of Chicago v. Law,
144 Ill. 569, 578-79 (1893). Accordingly, the United States
Congress enacted section 10 of the Rivers and Harbors Appropriation
Act of 1899 (Rivers and Harbors Act) which provides:
"[I]t shall not be lawful to build or commence the
building of any *** [structure] in any *** navigable river ***
except on plans recommended by the Chief of Engineers and
authorized by the Secretary of the Army." 33 U.S.C. §403
(1994).
Thus, a municipality may not build any structure in a navigable
river without permission from the Corps. 33 U.S.C. §403 (1994);
see City of Chicago, 144 Ill. at 579-80. In addition, the Corps
may place certain conditions on the issuance of a permit. United
States v. Alaska, 503 U.S. 569, 590-91, 118 L. Ed. 2d 222, 241, 112
S. Ct. 1606, 1618 (1992).
In the instant case, the Corps issued a permit pursuant to
section 10 of the Rivers and Harbors Act (33 U.S.C. §403 (1994)),
allowing the defendant to build the launch. However, the permit
placed the following conditions on the defendant:
"That no attempt shall be made by the permittee to
prevent the full and free use by the public of all navigable
waters at or adjacent to the [launch].
* * *
That there shall be no unreasonable interference with
navigation by the existence or use of the [launch]."
After reviewing the record, we determine that the Ordinance
violates the permit granted by the Corps. By prohibiting personal
watercraft from using the launch 5½ days of the week, the defendant
has essentially "prevent[ed] the full and free use by the public"
of the Fox River and unreasonably interfered with navigation.
Therefore, the ordinance violates the permit issued by the Corps.
Thus, we determine that the defendant lacked the authority to enact
the Ordinance.
The case at bar is similar to Buckley v. City of Redding, 66
F.3d 188 (1995). In Buckley, the United States Court of Appeals
for the Ninth Circuit recognized a federal right of access for
personal watercraft to navigable bodies of water. The court found
personal watercraft could not be prevented from accessing and using
a particular navigable waterway from a boat launch facility.
Buckley, 66 F.3d at 193. In Buckley, the right of access
originated in the Federal Aid in Sport Fish Restoration Act (Fish
Act) (16 U.S.C. §§777 through 777k (1995)). Because the municipal
defendant in Buckley accepted funds provided under the Fish Act to
build a boat launch, the defendant was contractually obliged to
accept the conditions set forth in the Fish Act's enabling
regulations. Among these were a requirement that the defendant's
launch accommodate " 'power boats with common horsepower ratings' "
(emphasis omitted) (Buckley, 66 F.3d at 192, quoting 50 C.F.R.
§80.24 (1995)) classified by the United States Coast Guard.
Because personal watercraft fall within the common horsepower
rating, the defendant could not restrict such craft. Buckley, 66
F.3d at 192.
The defendant distinguishes Buckley from the case at bar by
pointing out that the defendant did not build the launch with funds
provided under the Fish Act. We find this distinction immaterial
because in the instant case the defendant built the launch with
permission from the Army Corps of Engineers. Accordingly, the
defendant in the instant case must comply with the conditions
placed on it by the Corps, just as the defendant in Buckley had to
comply with the Fish Act (16 U.S.C. §§777 through 777k (1995)). We
recognize that the condition at issue in the instant case differs
from the condition at issue in Buckley. Nevertheless, we are
persuaded by the court's reasoning that a municipal defendant is
contractually obliged to accept conditions set forth in an enabling
document.
We recognize the defendant has a legitimate interest in
preventing noise, wake, and wildlife problems. However, the
Ordinance unreasonably singles out one type of watercraft in an
effort to eliminate the deleterious effects that excessive noise
and speed create. The problems of excessive noise and speed are
not solely related to personal watercraft. We believe it is
unreasonable to deny the use of the Batavia launch to users of
personal watercraft and continue to allow all other watercraft of
the same class (see United States Coast Guard Regulation 46 C.F.R.
§24.10--17 (1994)) to use the launch. Instead of singling out one
type of watercraft, the defendant should enact appropriate
ordinances which apply to all watercraft. See Springfield Park
District, 140 Ill. App. 3d at 531; Great Lakes Motorcycle Dealers
Ass'n v. City of Detroit, 38 Mich. App. 564, 196 N.W.2d 787 (1972).
The defendant has the right to regulate, but a regulation applies
equally to all. Because the Ordinance singles out one type of
watercraft, it is unreasonable and thus violates the permit issued
by the Corps.
The defendant argues that it has the authority to enact the
Ordinance pursuant to its police powers. We reject this argument.
We recognize that section 11--4 of the Code grants the defendant
authority to "take charge of, control and police" its section of
the Fox River. 70 ILCS 1205/11--4 (West 1994). However, section
11--5 of the Code limits the defendant's power in that regard.
Section 11--5 provides that the authority granted in section 11--4
does not authorize the defendant to "interfere with the navigation
of any navigable body of water or to shut off the access to any
public dock or landing thereon." 70 ILCS 1205/11--5 (West 1994).
By prohibiting personal watercraft from using the launch 5½ days of
the week, the defendant has essentially "shut off" access. Thus,
the defendant has exceeded its authority granted by section 11--4
of the Code (70 ILCS 1205/11--4 (West 1994)), and its argument
fails.
Because we find the Ordinance invalid on the grounds stated
above, we need not address the plaintiffs' more specific
contentions that the ordinance violates: (1) "An Ordinance for the
Government of the Territory of the United States north-west of the
[R]iver Ohio" (Ordinance of 1787); (2) the "dormant" commerce
clause of the United States Constitution; and (3) Illinois'
prohibition against overly broad and arbitrary classifications. In
addition, because the issue is moot, we need not address the
plaintiffs' argument that the affidavits submitted in support of
the ordinance do not comply with Supreme Court Rule 191 (see 145
Ill. 2d R. 191).
The judgment of the circuit court of Kane County is reversed.
Reversed.
GEIGER, J., concurs.
JUSTICE HUTCHINSON dissenting:
The majority's determination that defendant lacks the
authority under the Code to regulate the launch depends on the
construction of two provisions, section 11.1--3(f) and section
11.1--1. I examine each as it relates to defendant's regulatory
authority.
Section 11.1--3(f) expressly grants defendant the power to
"license, regulate, and control the use and operation *** of all
water-borne vessels"--and, therefore, personal watercraft--in two
situations. 70 ILCS 1205/11.1--3(f) (West 1994). First, defendant
is authorized to regulate any water-borne vessel in a harbor or
within 1,000 feet of the outer limits of a harbor. 70 ILCS
1205/11.1--3(f) (West 1994). The definition of harbor contains a
list of places or facilities included in the definition of a harbor
provided these places or facilities are used "in connection
therewith." 70 ILCS 1205/11.1--1 (West 1994). Among the listed
places and facilities are "harbors." Reading "harbor" as a term of
art referring exclusively to "a part of a body of water protected
and deep enough to furnish anchorage" (Webster's Ninth New
Collegiate Dictionary 552 (1990)), rather than as a general term
encompassing all the places and facilities set forth in section
11.1--1, yields the unworkable result that the term harbor as used
in the Code includes harbors used in connection with harbors.
Hence, such a construction renders meaningless the second usage of
the term "harbor" in section 11.1--1. Courts should avoid
construing a statute in a manner that reduces any element of the
legislation to mere surplusage. See, e.g., Bonaguro v. County
Officers Electoral Board, 158 Ill. 2d 391, 397 (1994)(if possible,
when determining the legislature's intent, statutes should be
construed so each portion has meaning).
The more reasoned construction is that the first usage of
"harbor" is a general term: a heading for section 11.1--1. Under
this general rubric falls each of the different places and
facilities that qualify as a "harbor." The "in connection
therewith" language refers to improvements made to each place or
facility falling within a listed category (e.g., a dock built on a
harbor, or a ramp connecting two docks located on a river). Under
this construction, defendant's launch is a "harbor" within the
general meaning section 11.1--1 gives to the term. Therefore,
defendant has the authority to regulate the use of the launch.
Second, defendant is authorized to regulate any water-borne
vessel "otherwise within the jurisdiction of the park district."
70 ILCS 1205/11.1--3(f) (West 1994). I would think it obvious that
a water-borne vessel introduced onto the Batavia section from
defendant's boat launch is within defendant's jurisdiction if for
no other reason than it must travel over defendant's property to
reach the Batavia section. Again, therefore, I conclude that
section 11.1--3(f) expressly grants defendant the authority to
regulate the usage of their launch.
My conclusion is amply supported by other provisions of the
Code dealing with the issue of park district regulatory authority.
For example, the legislature has expressly provided that
defendant's general powers are not limited to those enumerated in
the Code. See 70 ILCS 1205/11.1--3 (West 1994)(before listing the
general powers of park districts, the legislature used the phrase,
"its rights and powers include but are not limited to the
following"). The legislature has also provided broad police powers
over navigable waters. See 70 ILCS 1205/11--4 (West 1994)(granting
park districts "[p]olice powers" to "take charge of, control and
police [an adjacent navigable] body of water and the land
thereunder").
The majority asserts, "[b]ecause there is no evidence that the
Batavia section of the Fox River is a harbor, section 11.1--3(f)
does not grant the defendant the power to 'regulate[] and control'
the use of the launch." Slip op. at 6, quoting 70 ILCS 1205/11.1--
3(f) (West 1994). To state such a proposition is to refute it. I
would be surprised if the majority seriously meant to assert
defendant lacks the authority to close the launch to the public at
night, during periods of inclement weather, or on the basis of
other safety concerns--provided, of course, the majority concurred
in defendant's judgment concerning what constituted prudent public
policy. On the contrary, the legislature has expressly granted
defendant the authority to regulate the use of navigable waterways
and park district structures used to access such waterways.
Notwithstanding their holding that defendant lacked the
authority to promulgate the regulation under the Code, the majority
reaches the federal issue of public use of navigable waterways.
The majority holds (1) that the Ordinance prevents the full and
free public use of the Fox River and unreasonably interferes with
navigation; and (2) there is a federal right to access for personal
watercraft to navigable bodies of water. It is a long-standing
maxim that appellate courts need only rule on those issues
necessary to the decision. See McDaniel v. Bullard, 34 Ill. 2d
487, 494 (1966)(declining to reach constitutional question where
issue may be resolved via statutory construction); see also R.
Aldisert, Opinion Writing 87 (1990). Therefore, if defendant truly
lacked the authority to regulate the use of the launch, there would
be no reason to reach these federal issues. Hence, I infer the
majority is cautious in its statutory analysis of the Code and
seeks to buttress its judgment by relying on federal law. I
discuss each of the majority's holdings under federal law in turn.
In support of its first holding, the majority neither cites
authority nor engages in any analysis beyond naked assertion. The
quotation from the permit issued by the Corps fails to provide
substantive justification for the majority's holding. The permit
defines neither "full and free use" nor "unreasonable
interference." Unfortunately, neither does the majority. The sum
total of its analysis is "[b]y prohibiting personal watercraft from
using the launch 5½ days of the week, *** defendant has essentially
'prevent[ed] the full and free use by the public' of the Fox River
and unreasonably interfered with navigation." Slip op. at 8.
There are several reasons to avoid this result. A permit
containing the identical "full and free use" condition has been
interpreted to prohibit obstruction to only the navigable body of
water and not a mooring structure built on the water. See First
National Bank v. SFIC Gulf Coast Properties, Inc., No. 91--3781,
slip op. at __ (E.D. La. February 10, 1993). Additionally, in the
absence of contrary congressional action, a state's regulatory
authority over the use of and access to its navigable bodies of
water is plenary. Economy Light & Power Co. v. United States, 256
U.S. 113, 121, 65 L. Ed. 847, 854, 41 S. Ct. 409, 412 (1921).
Consequently, the "full and free use" language does not imply a
prohibition on all state and municipal regulation of the use of and
access to such waters. See, e.g., Escanaba & Lake Michigan
Transportation Co. v. City of Chicago, 107 U.S. 678, 689, 27 L. Ed.
442, 447, 2 S. Ct. 185, 194 (1882)(upholding a municipal
restriction of commercial navigation of the Chicago River based
upon the "navigable waters *** shall be common highways *** and
forever free" language of the Northwest Territory Ordinance of
1787). It should also be noted that the Corps' inclusion of the
"full and free use" condition in the permit does not express a
particularized concern that municipal regulation of boat launches
poses a threat to the use of navigable waters. See Boone v. United
States, 725 F. Supp. 1509, 1523 (1989), aff'd, 944 F.2d 1489
(1991)(Corps acknowledges "full and free use" condition was
included in virtually all permits it issued). Furthermore, the
plain and inescapable construction of the phrase "unreasonable
interference" permits a municipality to reasonably interfere with
navigation. Finally, at oral argument an attorney for plaintiffs
conceded his clients use their personal watercraft for
entertainment not transportation purposes.
In light of the foregoing, I cannot agree the Ordinance runs
afoul of the conditions set forth in the permit. The Ordinance
does not prevent navigation of the Batavia section by personal
watercraft. On the contrary, the Ordinance (1) allows all boats--
including personal watercraft--to navigate the Batavia section
seven days a week; (2) allows personal watercraft aficionados to
use the launch to access the Batavia section 1½ days a week; (3)
limits the use of the launch for a discrete group of boaters--those
piloting personal watercraft--not all boaters; and (4) is based
upon the factual finding of a legislative body--the Batavia Park
District--that the use of personal watercraft gives rise to public
policy concerns not implicated by the use of other watercraft. I
would find that the Ordinance neither prevents the full and free
use of the Batavia section nor unreasonably interferes with
navigation.
Furthermore, I believe that the majority's second holding
under federal law is based on an unequivocally inapplicable
precedent. As the majority concedes, Buckley involved a condition
set forth in the enabling regulations to a federal statute not at
issue in the present case. The so-called federal right recognized
by the majority was dependent on the contractual obligations
present in Buckley arising from the defendant's acceptance of funds
under the Fish Act; because the defendant used such appropriations
to build a launch, it was obligated to accommodate " 'power boats
with common horsepower ratings.' " (Emphasis omitted.) Buckley,
66 F.3d at 192, quoting 50 C.F.R. §80.24 (1995). In the present
case, the Fish Act is not at issue. There is no generalized
federal right of access for personal watercraft via municipal boat
launch facilities.
The true rationale for the majority's ruling appears to be
this: they disagree with the policy judgment exercised by
defendant. The majority repeatedly asserts defendant has
"unreasonably" singled out one type of watercraft. The majority
also states "a regulation applies equally to all." (Emphasis
added.) Slip op. at 10. It is a quintessentially legislative
function to classify--and therefore differentiate--similarly
situated but distinguishable individuals. Provided "a law neither
burdens a fundamental right nor targets a suspect class, we will
uphold the legislative classification so long as it bears a
rational relation to some legitimate end." Romer v. Evans, 517
U.S. ___, ___, 134 L. Ed. 2d 855, 865, 116 S. Ct. 1620, 1627
(1996); see also Opyt's Amoco, Inc. v. Village of South Holland,
149 Ill. 2d 265, 270 (1992)(if a statute prohibits certain
activities, such activities must have a causal relationship to the
harm the legislature seeks to guard against or else the exercise of
the police power is void). The users of personal watercraft are
not a suspect class and the piloting of personal watercraft for
entertainment purposes is not a fundamental right. The Ordinance
is rationally related to legitimate ends, and there is a causal
relationship between the activity regulated and the harms
identified with that activity. At this point the judicial inquiry
should end. I believe it is improper for a court to weigh the
wisdom of a legislative body's choice to adopt one rational and
reasonable policy option rather than another.
I respectfully dissent.