UPDATE - June 1: The hearing scheduled for today was rescheduled for Friday, June 4, at the judge's request.
A Cook County judge last Friday struck from the record significant portions of testimony contained in 30 affidavits submitted by the Park District of La Grange in support of its latest petition to obtain court approval to sell 2.82 acres of Gordon Park to developer Atlantic Realty Partners (ARP).
Going over every affidavit paragraph by paragraph, and in some cases line by line, Circuit Court Judge Susan Fox Gillis removed almost every statement citing the anticipated benefits the sale would have, both in funding improvements to the remaining 14 acres of the park, and to the community as a whole.
In taking her action, Gillis referenced an Illinois Supreme Court ruling that was cited in a motion to dismiss the affidavits filed by attorneys for La Grange Friends of the Parks, a group of residents who are asking the court not to approve the Park District's sale petition.
Gillis said she agreed with the Friends' contention that “the affidavits boil down to general statements of support for the Park District’s case which are not evidentiary and should not be considered." Typically, a judge will not consider opinions unless they are offered by individuals whose expertise on a topic has been documented to her satisfaction.
In addition to affidavits prepared by Park District officials, the documents affected include those submitted by officials for the Village of La Grange, former La Grange Business Association President Michael LaPidus and other local businesspersons and residents, as well as those filed on behalf of the Illinois Park District Association, ARP President Richard Aaronson, and two landscape architects hired by the Park District.
But Judge Gillis did not stop there.
Although attorneys for the Park District did not formally request her to strike any of the eight affidavits submitted by the Friends, Gillis seized upon a footnote that the Park District included in one of its filings that reserves the right to make a similar motion at a later date.
The judge then proceeded to apply a red pen to the Friends affidavits, again striking almost all statements and, in some cases, single adjectives and adverbs, that Gillis said were opinions not facts, or in some cases too vague.
Left untouched by Gillis were two resolutions submitted by the village board of trustees and the District 102 school board, both of which support the sale and include many of the same subjective statements the judge struck from other affidavits.
Gillis said she would not edit the resolutions of those legislative bodies, but added that their statements may not be supported by facts.
"Personal knowledge is key, not personal conclusions," Gillis said.
Exactly where Gillis' action leaves the Park District in its effort to convince her of the merits of its petition is uncertain. When attorneys for the Park District subsequently asked Gillis what standards she would now apply in deciding the matter, the judge did not provide clear instruction.
"I’m cutting the guts out in most cases for both sides," the judge noted, suggesting that, in the event she sets a hearing for oral arguments, the parties' respective attorneys will face the burden of preparing strong, fact-based presentations on why—or why not—sale of the parkland is in the "public interest," the standard established in the Illinois Park District Code .
However, a full hearing may never take place should Gillis grant either of two opposing motions for summary judgment, one filed by each side last month. A decision on those motions is expected June 1.
If Gillis sides with the Friends, she may rule, as she did in June 2008 on an earlier sale petition submitted by the Park District, that the parkland in question exceeds three acres and is therefore outside the court's jurisdiction.
Park officials say the problem with the first petition—a vacated portion of Shawmut Ave, amounting to three-quarters of an acre, was included in the legal description, increasing the amount of parkland being sold to 3.5 acres—has been remedied by swapping the vacated roadway to the village in exchange for a parking lot on Locust Ave adjacent to Gordon Park.
But the Friends contend that the vacated roadway is still part of the deal because the swap only stays in place if the 2.82 acres of parkland is sold to ARP.
If Gillis buys that argument, the Park District may be forced to fall back on its alternative plan to sell the parkland under the authority of a public referendum held in November of that year.
Park District voters approved the sale referendum by a margin of 55 to 45 percent, but a subsequent auction in which developer ARP was the sole and successful bidder was voided by another Cook County judge, Leroy Martin Jr, who ruled in June 2009 that a level playing field did not exist because ARP had been granted favorable zoning by the village that did not apply to other potential bidders.
That ruling is currently being reviewed by the state appellate court.
A full hearing also may not be required if Gillis grants the Park District's motion for summary judgment and agrees with its contention that another Illinois Supreme Court ruling, Fields Jeep-Eagle v. Chrysler, bars the court from second-guessing a legislative body's reasons for determining what is in the "public interest."
If Gillis agrees with the Park District, however, Tom Beyer, one of three attorneys for the Friends, said they would ask the court to find unconstitutional the statute under which the Park District's petition was submitted, a result that occurred in the Fields case, but that Beyer said the Park District's attorneys have "conveniently ignored."
Beyer raised the issue of constitutionality in a motion filed with the court earlier this month, but Gillis declined to consider it at that time.
Even if the Park District is ultimately successful in obtaining court approval of its latest petition, there remains the question of whether ARP is still interested in purchasing the parkland.
ARP's Aaronson last November said that the currently distressed real estate market will not support his company's plans for La Grange Place, its major residential and commercial redevelopment of the former YMCA Rich Port site and the adjoining park acreage, which was approved by village trustees in April 2008.
An effort by ARP to renegotiate its purchase price for the Rich Port parcel were rebuffed by YMCA officials, who in December said they would explore alternate plans for the site.
Last week, the YMCA announced it would demolish the five-story building on the site, which has sat vacant for the past three years, and is generally viewed as an eyesore.
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