Steier v. Batavia Park District
Case Date: 09/25/1996
Court: 2nd District Appellate
Docket No: 2-95-1397
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_________________________________________________________________ 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 5 |