This is a guest post by Nick Schroeck, Executive Director of the Great Lakes Environmental Law Center. Nick is the lead attorney for the environmental groups in the Supreme Court case described below.
The Michigan Supreme Court will soon hear oral argument in Carol Drake and Clellen Bury v. City of Benton Harbor and Harbor Shores Community Redevelopment Corporation to address whether the City of Benton Harbor may lease a portion of Jean Klock Park to Harbor Shores Community Redevelopment Corporation to develop 3 holes of a proposed 18-hole championship Jack Nicklaus golf course. The court will consider whether the lease may violate: (1) the restriction set forth in the 1917 deed from John Klock to the City of Benton Harbor which created the Park; or (2) the January 27, 2004 consent judgment in an earlier lawsuit between the plaintiffs and the City relating to the City’s sale of a portion of Jean Klock Park to Grand Boulevard Renaissance, LLC, for the construction of a residential development.
The Friends of Jean Klock Park have created an excellent history of the Park, and their efforts to protect it, available online (see www.savejeanklockpark.org). In 1917, John Klock donated the property to the City of Benton Harbor in memory or his daughter Jean, with the intent that “the lakefront always be preserved in its natural state and be a playground for the children and a bathing beach for all the people.” To allow the City of Benton Harbor, after ninety-three years, to divest the public of its interest in the park would not only defeat the intent of Mr. Klock, but could also subject numerous other public properties in the state to the possibility of private sale and to the exclusion of the public.
The Great Lakes Environmental Law Center, joined by the Saugatuck Dunes Coastal Alliance, Defense of Place, Preserve the Dunes, and West Michigan Environmental Action Council, have filed an amicus curiae brief to address two significant legal issues presented in this case: (1) whether the language of the existing deed is sufficiently ambiguous to allow appellant to introduce extrinsic evidence as to the drafter's intent; (2) whether the development of a golf course violates the restrictive covenant requiring that Jean Klock Park be “open for the use and benefit of the public.” As Amici point out in their brief, in light of current economic pressures:
“Michigan’s publicly held lakeshore properties are threatened by sale, lease or development and none of more import than the ecologically unique freshwater dunes that line the western shore of the Lower Peninsula. Our tourism industry depends on public access to these unparalleled natural assets, not to mention the health and sustainability of the ecosystem itself. The threat is not just to the residents who will no longer be able to use the land for the purpose that it was intended, but also to the land itself. No public land would be safe from the threat of private development. No future generation would be assured public access to any undeveloped land that was gifted to the public. Without protection those who would dedicate property for public use in perpetuity will not be guaranteed that their intent will be satisfied, and the public will suffer.”
Hopefully the Supreme Court will agree that that public lands deserve protection and that the intent of Mr. Klock’s gift, and others like it, should be respected so that the public will continue to have access to parklands and the Great Lakes.