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Injunction to Remove Divvy Station Denied, But Lawsuit Can Continue

11:58 AM CDT on August 29, 2013


Last Friday Judge Kathleen Kennedy heard arguments from plaintiffs Jeannine Cordero and David Kolin, representing the 3565 N Pine Grove condo association, about receiving an injunction to prevent the installation of a Divvy bike-share station on the roadway adjacent to their building. They contended that the station would devalue their property and bring litter, and that strangers would follow children who live in the building.

One can only imagine how, years from now, future Chicagoans will view this legal challenge to the city's first new transportation system of the 21st century. Here's a look at how it's played out so far, for the record.

After about 40 minutes of discussion with the plaintiffs and Michael Dolesh of the city law department, who was representing the transportation department and Alderman James Cappleman, Kennedy ruled [PDF] that the plaintiff "has not stated a clearly ascertainable right justifying injunctive relief or protection and therefore cannot succeed on the merits." In other words, the request for an injunction had no legal standing.

Another complaint alleged by the condo association was "that it was entitled to notice" of the Divvy installation, according to the city's memo. In response, the city said there is no state law entitling them to notice, and that one cannot have a "unilateral expectation" that such a notice will be provided. The memo continues [PDF]:

The streets, sidewalks and parkways of a city are held in trust by the municipal authorities for the benefit of the public, and the primary right to use the public way belongs to the public, not abutting landowners.

Since the abutting landowner has no right to dictate what happens in the public way, and nothing that is happening in the public way in this situation is shown to be affecting a right of the landowner, "no process is due," the city concludes.

After responding to the several other complaints presented by the condo association (including that the landowner has no right to restrict commercial activity in the public right-of-way), the city writes that they have "determined that the Divvy bike-share program will have beneficial effects on traffic, the environment, and the economy. Here, the public interest weighs in favor of allowing the City, as trustee for the public, to use the public street in the manner it has determined will most benefit the public."

The question of not being notified was brought up in the comments of an earlier Streetsblog post on the lawsuit. Should nearby homeowners be notified of incoming Divvy stations? In my cursory review of the station map, a large portion of Divvy stations are within 50 feet of a residence. The nature of bike sharing – and of any transit system – requires that they be near people's trip origins, also known as their homes. Additionally, Dolesh, the city's lawyer, told Judge Kennedy that the city would be reviewing all 300 Divvy locations after rollout to ensure each is appropriately sited. If Chicagoans believe they should receive notice of any public works project near their property, the law or city policy must be changed to require it.

A status conference has been scheduled for September 24, will be open to the public, and "is just an opportunity for the parties to advise the court of the case's progress," said Alex Hartzler, an unaffiliated attorney who attended the hearing. He gave an example: "We are negotiating a settlement agreement and would like to come back in 28 days to advise the court of our progress."

Another lawyer in attendance, unaffiliated with the case and who asked not to be named, said that "the judge should have dismissed the case for failure to state any kind of legally cognizable claim. Unfortunately the case lives on, and if the condo [association] wants to be aggressive it will serve discovery requests (document demands, interrogatories, and deposition notices) to try to build some case, which I think would be fruitless."

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