Wesley Twp Rivals Lookout Park legal memo: Pay attention to question asked –

Wesley Township, IL. (ECWd) –

In the controversy surrounding Wesley Township improperly charging for people to use Rivals Lookout Park, and even in some instances closing to park for private parties, it is important to pay attention to the actual question asked.

Our previous position stands: That the township cannot charge people to use this park…any part of it... The enabling language is exactly what the legislature granted: “to be set apart and forever held and maintained and improved as public parks for the free use of the public”

When the legislature uses strong language like “set apart” and “forever held” and “free use of the public” it never intended “forever held” to mean “except when a private party or person wants to use it” and keep the public out – not even for one minute, let alone an entire day or afternoon. It never intended “free” to mean “unless the township decided to charge for it.”

We drew our position from the actual Township Code, which has a separate section devoted exclusively to a Township Park, Article 120, Section 5, which states that:

(a) A township, acting through the township board, may acquire lands (not exceeding for any one park 25 acres in extent, unless received as a gift) to be set apart and forever held and maintained and improved as public parks for the free use of the public.

Article 120 also explains how to obtain the funds necessary to maintain, upkeep, and develop township parks. Nothing authorizes a township to charge fees for use of a township park.

Wesley Township Supervisor JoAnn Quigley asked the township’s attorney one question:

The Question: “Can the township charge fees for certain uses of its park?”

Ancel Glink took the approach of answering the actual question asked, but did not specifically address the controversy surrounding the asking of the question (click here for the memo or read it below).

This legal opinion does nothing to support the township’s current position and would set a dangerous precedent if not challenged.

Their letter discussed the mandate for “free use of the public” and also went on to explain that a township had the authority to charge reasonable fees for “recreation and instructional programs sponsored by the township.”

Words have meaning, so we submitted an FOIA request to the township for all of their “recreation and instructional programs” so we could then determine what the fees were for each program.  It should be noted, any such program is, in fact, a public program, which is the only thing they could charge fees for.

We have yet to receive a response and believe there are no such programs.

Recreation and instructional programs are “programs” having some sort of structure and supervision. A township cannot simply put in a swing set and call it a recreation or instructional program. The same goes for camping sites, fishing, and use of the pavilion.

Therefore, a township may NOT charge people to use the park or any part of it, but it may charge reasonable fees for the township’s own programs, or township sponsored programs from other entities and such programs are public programs.

The distinguishing language is within the Township Code – use of the park property is free. A township may charge fees for recreation and instructional programs (but not for the park). There is a difference.

When two parts of the same statute appear to conflict, the more specific section takes precedence over the more general section.

• Article 120: Township Parks – SPECIFIC powers
• Article 85: Township Corporate Powers – GENERAL powers
• Article 30: Purchase and use of real property – SPECIFIC to its subject, but subordinate to the more specific Article 120 for park property

Article 120 is specific to the Township Park and carries precedence over Article 85 which is a general section applicable to all other things a township does that are not specifically dealt with in other parts of the statute. To find any other meaning is absurd: “Free use of the park” means just that, and “recreation and instructional programs” means exactly what it says. A township cannot charge to use the park, and township must first develop or sponsor a “program” and even then can only charge to participate in the program and not for use of the park.

This also applies to closing parks for private events. No statutory authority can be found. It cannot happen. A local government has only those powers granted it by the legislature. The legislature granted the powers to acquire property for a township park and for the park to be set apart and forever held for the free use of the public.

Article 30 talks about leasing township real property or buildings and contains specific requirements, none of which apply to township park property. Article 105 talks about land and property and likewise does not apply to the township park.

IF arguendo, the township park was an “Open Space” under Article 115 of the statute, which it is not, then the township would have the legislatively granted authority to lease its real property for campgrounds and to even lease it buildings on such property. Rivals Lookout Park was acquired as a Township park and cannot be converted to an open space. Any such conversion would violate the statute.

So, yes, the attorney answered the question asked, but the supervisor failed to ask the appropriate question.

We disagree with the last portion of the attorney’s opinion in relation to renting/leasing out parts or all of the park.  There is no provision for temporary private use of a public park that clearly, by law, is set apart and forever held and maintained and improved as public parks for the free use of the public.

As far as the public or private use of the park, programs put on by the township are in fact public.  All other use of the park is private as it has no ties to a government program.  There is no provision for fees to be charged to a private person or entity to come and use the park that the law says is forever held for the free use of the public.

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