For the next several years, Kelley’s permit was renewed and he and his volunteers tended the impressive garden. They pruned and weeded and regularly planted new seeds, both to experiment with the garden’s composition and to fill in where initial specimen had not flourished. Of course, the forces of nature—the varying bloom periods of the plants; their spread habits, compatibility, and life cycles; and the weather—produced constant change. Some wildflowers naturally did better than others. Some spread aggressively and encroached on neighboring plants. Some withered and died. Unwanted plants sprung up from seeds brought in by birds and the wind. Insects, rabbits, and weeds settled in, eventually taking a toll. Four years after Wildflower Works was planted, the Park District decided to discontinue the exhibit. On June 3, 1988, the District gave Kelley a 90-day notice of termination.
Kelley responded by suing the Park District in federal court, claiming the termination of his permit violated the First Amendment. The parties quickly settled; in exchange for dismissal of the suit, the Park District agreed to extend Kelley’s permit for another year. On September 14, 1988, the Park District issued a “Temporary Permit” to Kelley and Chicago Wildflower Works, Inc., a nonprofit organization formed by his volunteers. This permit authorized them “to operate and maintain a two ellipse Wildflowers Garden Display … at Daley Bicentennial Plaza in Grant Park” until September 1, 1989. The permit stipulated that Kelley “will have responsibility and control over matters relating to the aesthetic design and content of Wildflower Works I,” and Wildflower Works, Inc. “shall maintain the Wildflower Works I at no cost to the Chicago Park District including, without limitation, weeding and application of fertilizer.” Although it did not contain a notice-of-termination provision, the permit did state that “[t]he planting material is the property of Mr. Chapman Kelley” and that Kelley “may remove the planting material” if the permit was not extended. Finally, the permit provided that “[t]his agreement does not create any proprietary interest for Chicago Wildflower Works, Inc., or Mr. Chapman Kelley in continuing to operate and maintain the Wildflower Garden Display after September 1, 1989.”
The Park District formally extended this permit each succeeding year through 1994. After that point Kelley and his volunteers continued to cultivate Wildflower Works without a permit, and the Park District took no action, adverse or otherwise, regarding the garden’s future. In March 2004 Kelley and Jonathan Dedmon, president of Wildflower Works, Inc., attended a luncheon to discuss the 20th anniversary of Wildflower Works. At the luncheon Dedmon asked Park District Commissioner Margaret Burroughs if Wildflower Works needed a new permit. Commissioner Burroughs responded, “You’re still there, aren’t you? That’s all you need to do.”
Three months later, on June 10, 2004, Park District officials met with Kelley and Dedmon to discuss problems relating to inadequate maintenance of the garden and forthcoming changes to Grant Park necessitated by the construction of the adjacent Millennium Park. The officials proposed reconfiguring Wildflower Works—decreasing its size from approximately 66,000 square feet to just under 30,000 square feet and remaking its elliptical flower beds into rectangles. The District’s director of development invited Kelley’s views on this proposal but made it clear that the District planned to go forward with the reconfiguration with or without Kelley’s approval. Kelley objected to the proposed changes, but did not request an opportunity to remove his planting material before the reconfiguration took place. A week later the
