Save Jean Klock Park, Michigan
Challenge: With clear intent articulated by words of the heart and the legal terms of a deed, John and Carrie Klock bestowed Lake Michigan parkland in 1917 to the residents of Benton Harbor, Michigan, in memory of their infant daughter Jean. John Klock’s dedication rang clear: “The beach is yours, the dunes are yours, all yours. It is not so much a gift from my wife and myself as a gift from a little child. See to it that the park is the children’s…”
The legal language of the gift’s deed was unambiguous:
“. . .upon express condition and with the express covenant that said lands and premises shall forever be used by the said city of Benton Harbor for bathing beach, park purposes or other public purposes and at all times shall be open for the use and benefit of the public.”
Over the years the lure of the rare lakefront property brought several development attempts, but all were thwarted until seven years ago, when Benton Harbor officials signed a compromise with the Whirlpool Corporation’s Harbor Shores project to allow partial residential development of approximately 22 acres “in exchange for permanent protections of the remaining 73 acres of the park.”
However, with the complicity of politicians and governmental agencies — even those responsible for protecting the historic and environmental designation of the dunes, wetlands and marsh — that promise was shattered. In September 2008, enabled by dubious permits and spurious legal decisions, the developers’ bulldozers breached the crest of the dunes and excavated fragile and irreplaceable vegetation to carve out three holes for a Jack Nicklaus Signature Golf Course for the “Harbor Shores Golf and Beach Club.”
Strategy: Park advocates, conservation organizations and environmental attorneys have battled through courts, commissions and the media to protest the violation of the Klocks’ deed; the developers’ claims that the golf course offers “public use” (with green fees that reach more than $100); and, that “nearby” lands selected to replace the lost Jean Klock Park acreage are of equal ecological value. Instead, the “mitigated” lands consist of widely scattered parcels known by the National Park Service to be contaminated with industrial pollutants.
The efforts to save the Park and overturn prior judgments was reached the Michigan State Supreme Court on January 21, 2011. In a dismaying turn on February 4, however, the Court denied the application of the Plaintiffs representing Jean Klock Park. The Order issued by the six Justices representing the majority declined further review, “ . . . because we are not persuaded that the questions presented should be reviewed by this Court.”
The lone dissenting voice came from Justice Stephen Markman, who articulated a Defense of Place founding principle: “. . . I believe that the City’s use of Jean Klock Park, by leasing portions of it for 105 years to a private commercial entity, the Harbor Shores
Community Redevelopment, Inc., for its use as a golf course, constitutes a breach of faith … Although the City prevails today, it, and other communities throughout our state, may well come out losers tomorrow as later generations of philanthropists look at the legacy of J. N. and Carrie Klock and come to question the faithfulness of government in upholding their intentions after they too have passed. I respectfully dissent.”
– Justice Stephen Markman –
His opinion echoed the Friends of Jean Klock Park’s original application for the leave to Appeal: “ People who make a gift, who leave a legacy like that of the Klocks, should know that their legacy will be protected in the future.”
The Plaintiffs were supported by Briefs filed by the Great Lakes Environmental Law Center including signers Defense of Place, Saugatuck Dunes Coastal Alliance, Preserve the Dunes, and West Michigan Environmental Action Council; and by Friends of Michigan Parks.
The fight to protect Jean Klock Park now moves to a Federal Court: The U.S. Sixth Circuit Court of Appeals. Oral arguments will take place during Summer 2011 based on the federal lawsuit brought by Protect Jean Klock Park advocates Julie Weiss, Nicole Moon, Emma Kinnard, James H. Duncan, Lea’Anna Locey, Scott Elliott and Ronnie Whitelow, under the Federal Administrative Procedures Act (APA).
The suit alleges that Federal laws violated in the course of Harbor Shores’ permit process include the Clean Water Act, the Land and Water Conservation Fund Act, the National Environmental Policy Act and the National Historic Preservation Act. The Complaint was filed against the Department of the Interior, National Park Service, the City of Benton Harbor, the U.S. Army Corps of Engineers, and the Advisory Council on Historic Preservation. Harbor Shores Community Redevelopment, Inc., has intervened to become a Defendant, as they continue to deploy their financially and politically powerful influence.
Descriptions of “inadequacy,” “noncompliance,” “capricious,” “improper approval,” “no public record narrative,” “no arithmetic discussion of this volume” (thousands of cubic yards of topsoil or other fill material to re-create dune ridge mass), “no quantified data, detail or discussion of any management of waterborne chemical runoff,” and more fill the pages of the complaint.
One key issue hinges on the truthfulness of filed documents, including the response to the question of whether project approval would have a disproportioinately high and adverse eeffect on low-income or minority populations. Michigan’s Department of Natural Resources answered “No,”when, in fact the population of the City of Benton Harbor is over 90 percent African-American. A “Yes” response “would have triggered the requirement of compiling an Environmental Impact Statement (which was not done).
In the midst of the legal and environmental stresses that have plundered Jean Klock Park comes a new threat: Michigan’s assignment of an “Emergency Financial Manager” (EFM) for Benton Harbor, whose broad and unassailable authority could result in the sale of even more or all of the Park for further development. The unilateral and unquestioned powers of the EFM gained national attention in the April 25 broadcast of MSNBC’s “Rachel Maddow Show” when she noted that the EFM assignment was nothing less than “imposing a dictatorship” on Benton Harbor. The web of connections woven by the developers, corporate backers and politicians prompts grave concerns whether the gift of the Klocks — and the rare Great Lakes beachfront dunes — will survive.