specially concurring:
I concur in the majority opinion. I write separately, however, to note that the majority opinion cannot be reconciled with the requirement advanced in Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 199 Ill. 2d 225 (2002), that the public be entitled to use or enjoy the facilities of a development project as of right and not as a mere favor or by permission of the owner.
In Southwestern Illinois Development Authority, 199 Ill. 2d at 235, the majority recognized that the state, as a sovereign, has the inherent right to condemn property, subject to the constitutional mandate that private property may not be taken or damaged for public use without just compensation to the owner. Further, the majority recognized that the subsequent transfer of property to a private entity does not transform a taking for public use into a taking for private use. See Southwestern Illinois Development Authority, 199 Ill. 2d at 235. The majority correctly cited Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984), and Berman v. Parker, 348 U.S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954), for these propositions. See Southwestern Illinois Development Authority, 199 Ill. 2d at 235-36. However, contrary to the holdings of Hawaii Housing Authority and Berman, the majority gave little deference to the legislature’s public purpose determination. Instead, the majority engrafted upon Hawaii Housing Authority and Berman a requirement that property taken for a development project be put into use for the public as of right, a proposition specifically rejected by the Court in Hawaii Housing Authority. See Hawaii Housing Authority, 461 U.S. at 243-44, 81 L. Ed. 2d at 199, 104 S. Ct. at 2331. The majority explained:
“As this court held in Gaylord [v. Sanitary District], 204 Ill. at 584 ‘[t]he public must be to some extent entitled to use or enjoy the property, not as a mere favor or by permission of the owner, but by right.’
If this taking were allowed to stand, it may be true that spectators at Gateway would benefit greatly. Developing additional parking could benefit the members of the public who choose to attend events at the racetrack, as spectators may often have to wait in long lines of traffic to park their vehicles and again to depart the facility. We also acknowledge that a public use or purpose may be satisfied in light of public safety concerns. [Citation.] The public is allowed to park on the property in exchange for the payment of a fee. Gateway’s racetrack may be open to the public, but not ‘by right.’ [Citation.] It is a private venture designed to result not in a public use, but in private profits.” Southwestern Illinois Development Authority, 199 Ill. 2d at 238-39.
The Southwestern Illinois Development Authority majority concluded that the taking was for a private use and not a public use. Southwestern Illinois Development Authority, 199 Ill. 2d at 242. In so concluding, the majority failed to give due consideration to the findings of the Authority and the St. Clair County board that expansion of the Gateway racetrack would enhance the public health and safety of the citizens of southwestern Illinois and would increase the general welfare by generating economic growth in the area. The majority also failed to give due consideration to the uncontested testimony in the circuit court that expansion of the racetrack would eliminate blight, alleviate traffic safety problems and promote economic development in the area. The majority eschewed these findings and the uncontested evidence adduced at trial, in favor of its stated rule that “ ‘to constitute a public use, something more than a mere benefit to the public must flow from the contemplated improvement’ the public must have access to the facility as of right. See Southwestern Illinois Development Authority, 199 Ill. 2d at 243 (Freeman, J., dissenting, joined by McMorrow, J.)
In the case at bar, the legislature amended the Illinois Sports Facilities Authority Act (70 ILCS 3205/1 et seq. (West 2000)) to authorize the Illinois Sports Facilities Authority to issue $399 million in bonds and enter into contracts for the implementation of an improvement project relating to Burnham Park. Specifically, the Act authorized the Facilities Authority to enter into an assistance agreement with the Chicago Park District, the governmental owner of Burnham Park, for the renovation of the park. The Facilities Authority, the Park District, the Chicago Bears Football Club, Inc., and the Chicago Bears Stadium L.L.C., the developer of the project, entered into a series of agreements for the improvement of Burnham Park, including the reconstruction of Soldier Field. The bond issue is to be repaid from revenues the Facilities Authority receives from hotel taxes. See 70 ILCS 3205/19 (West 2000). Thus, the legislature authorized the use of public funds for the improvement of Burnham Park and reconstruction of the stadium.
Under the terms of the agreements, the Bears are designated as the primary sports user of Soldier Field during the professional football season. The Bears are entitled to use the stadium on game days as well as six times in a calendar year. During the football season, the field is not to be used by any party, including the Park District, for the five days preceding a game day. The Bears may also request the use of the stadium for up to 34 events each year. The Bears’ lease agreement is scheduled to end in 2033, subject to the Bears’ option to extend the term of the agreement for four additional five-year periods.
The plaintiffs at bar argue, inter alia, that the Act violates the requirement in article VIII, section 1(a), of the Illinois Constitution that public funds, property or credit shall be used only for public purposes. Ill. Const. 1970, art. VIII, § 1(a). They also argue that the Act violates the public trust doctrine because it allows a private entity, the Bears, to use and control the stadium for its primary benefit, with no corresponding public benefit. The majority disagrees. It holds that the Act does not violate either the constitutional requirement that public funds be used only for public purposes or the public trust doctrine. In so holding, the majority, although it protests to the contrary, retreats from the requirement in Southwestern Illinois Development Authority that the public must be able to use the development project facilities as of right.
It is quite evident that the public is not “entitled” to the use of Soldier Field as of “right.” On game days, members of the public must pay a fee to view the Bears play at the stadium. The Park District itself cannot use the stadium for the five days preceding a game. Looking beyond the Bears, the stadium is used as a venue for the presentation of sporting events, concerts and other cultural events. In those instances also the public must pay an entrance fee. It is also evident that private parties such as the Bears benefit from the ability to charge an entrance fee to the public for the use of the stadium. The legislature, however, determined that there are public benefits from the development of sports arenas. As stated in the Act, “professional sports facilities can be magnets for substantial interstate tourism resulting in increased retail sales, hotel and restaurant sales, and entertainment industry sales, all of which increase jobs and economic growth.” 70 ILCS 3205/3 (West 2000).
The majority asserts that Southwestern Illinois Development Authority is distinguishable because the Authority there used the power of eminent domain to acquire the property at issue. This purported distinction is of no avail since the power of eminent domain, like the authority to issue the bonds in the present case, is but a means employed by the legislature to achieve the public purpose. Once the legislature has spoken regarding the public interests to be served, the means by which those interests are to be attained are also for the legislature to determine. See Berman, 348 U.S. at 33-34, 99 L. Ed. at 38, 75 S. Ct. at 103.
I note that, while the majority attempts to distinguish Southwestern Illinois Development Authority, the majority justifies its finding of a public purpose in the present case by reference to the financing and construction of Comiskey Park. The majority states:
“In view of Soldier Field’s long history of hosting events that have incidentally benefitted private interests, such as college and professional football games, professional boxing, professional soccer, horse shows, rodeos, and circuses, and because the same rationale used by the legislature as authority to construct and finance Comiskey Park is employed to establish the public purpose of the Soldier Field project authorized by the Act, we can discern no evasive or deceptive purpose in the legislature’s findings.” 203 Ill. 2d at 321.
The legislature authorized the Illinois Sports Facilities Authority to use the power of eminent domain in the construction of Comiskey Park, including the construction of parking structures serving the stadium. See 70 ILCS 3205/2, 12 (West 2000).
In my dissent in Southwestern Illinois Development Authority, I inquired of the majority
“what development project can satisfy the requirement that the public be ‘entitled to use or enjoy the property, not as a mere favor or by permission of the owner, but by right’? Can a member of the general public enter a manufacturing plant as of right? What of a sports facility? Can a member of the general public enter a stadium, or for that matter the racetrack at issue, without paying a fee for the privilege?” Southwestern Illinois Development Authority, 199 Ill. 2d at 263 (Freeman, J., dissenting, joined by McMorrow, J.).
The answer to my inquiries is that the public is not entitled to use or enjoy the facilities of a development project as of right. In the present case, the majority notes that “[t]he benefit to the public is not inherently diminished by the payment of an admission charge.” 203 Ill. 2d at 323-24. By this holding, the majority recognizes what it refused to acknowledge in Southwestern Illinois Development Authority. It only remains for this court to explicitly overrule the “public entitlement” requirement advanced in Southwestern Illinois Development Authority.
CHIEF JUSTICE McMORROW joins in this special concurrence.