|
March 25, 2009 |
Chicago Landmarks Ordinance Status On January 30, 2009, a three-judge panel of the Illinois Appellate Court issued a decision in the case of Hanna v. City of Chicago that challenged the constitutionality of the city of Chicago Landmark Ordinance (the "Landmark Ordinance"). On March 11, 2009, the city of Chicago petitioned the Illinois Supreme Court to review the decision. While the Hanna decision could lead to the overturning of existing landmark designations, at the present time all current landmark designations in the city of Chicago remain in place and the Commission on Chicago Landmarks ("Landmarks Commission") continues to review building permits and to study other properties for landmark designation. The appellate court's decision relates to an action brought by Albert Hanna and Carol Mrowka against the city of Chicago, the Landmarks Commission and several city officials alleging that the Landmark Ordinance was unconstitutional, both on its face, and as applied to the plaintiffs' properties, which were located in the Arlington-Deming and East Village Landmark Districts. Two main arguments of the plaintiffs were that the Landmark Ordinance was unconstitutionally vague and ambiguous with respect to the criteria for landmark designation, and that the Landmark Ordinance impermissibly granted discretionary authority from the city council to the Landmarks Commission without sufficient guidelines. The trial court dismissed plaintiffs' causes of action and the plaintiffs appealed to the Illinois Appellate Court. In its decision, the appellate court reversed the trial court's dismissal of several of the plaintiffs' causes of action and sent the case back to the trial court to determine: (a) whether the Landmark Ordinance is unconstitutionally vague, and (b) whether the Landmark Ordinance constitutes an impermissible grant of discretionary authority by a legislative body to an administrative body without sufficient guidelines. The appellate court first considered the question of whether the terms of the Landmark Ordinance are so incomplete, vague, indefinite and uncertain so as to make it unconstitutionally vague. The appellate court analyzed the seven criteria set forth in the Landmark Ordinance to be considered in recommending a district or structure for landmark status. Under the Landmark Ordinance, two of the seven criteria must be satisfied in order for the Landmarks Commission to recommend a district or structure for landmark status. The appellate court indicated that the terms "value," "important," "significant" and "unique" found in the criteria were "vague, ambiguous and overly broad." Since the appellate court also believed that qualifications for Landmarks Commission members were equally vague (the Landmark Ordinance allows persons who have demonstrated a "special interest, knowledge or experience" in architecture, history, neighborhood preservation or related disciplines to serve as members), the appellate court was unpersuaded that the Landmarks Commission could be well-guided by the criteria. The appellate court therefore found that the plaintiffs' allegations with respect to the vagueness of the Landmark Ordinance should not have been dismissed by the trial court. The appellate court then analyzed whether the Landmark Ordinance constitutes an impermissible grant of authority to the Landmarks Commission. Under the Landmark Ordinance, the Landmarks Commission submits recommendations to the city council for landmark designations. If the city council does not take final action upon a landmark recommendation within 365 days of receipt of the recommendation, the landmark designation is automatically granted. The appellate court found that this provision caused the Landmarks Commission to perform a declaratory function. Because the appellate court considered the seven criteria for landmark designation to be unconstitutionally vague, the appellate court then determined that such criteria do not adequately provide intelligible standards by which to guide the Landmarks Commission. Therefore, the appellate court found that the plaintiffs adequately stated a cause of action with respect to the Landmark Ordinance being an improper delegation of authority. In its opinion, the appellate court went well beyond determining that the plaintiffs adequately stated causes of action with respect to their claims and clearly stated that the Landmark Ordinance is unconstitutionally vague. Therefore, while the decision ordered the trial court to undertake an evidentiary hearing to decide whether the Landmark Ordinance is unconstitutionally vague and whether it constitutes an improper delegation of authority, there is little doubt that the trial court would follow the appellate court's guidance and declare the Landmark Ordinance to be unconstitutional. On March 11, 2009, the city filed a petition with the Illinois Supreme Court, asking it to review the appellate court's decision because of the imminent threat the decision poses to historic preservation efforts in Chicago and throughout Illinois. In its petition, the city argued that the appellate court decision conflicted with clear precedents of the Illinois Supreme Court with respect to delegation of authority to administrative bodies like the Landmarks Commission. The city's petition also noted the myriad of cases nationwide in which courts have rejected vagueness challenges to preservation laws similar to Chicago's Landmark Ordinance. The long term impact of the appellate court's Hanna decision is uncertain at present. A ruling by the Illinois Supreme Court upholding the appellate court's decision could have far-reaching effects. Not only could all landmarks in the city of Chicago have their landmark designations removed, but as the City pointed out in its petition, such a decision could spur challenges to other municipalities' landmark ordinances since many landmark ordinances have similar landmark designation criteria. Recognizing this possibility, Landmarks Illinois and the National Trust for Historic Preservation, other historic preservation organizations and several Illinois municipalities filed a statement of amici curiae with the Illinois Supreme Court in support of the City's petition. However, since so many other courts throughout the country have upheld similar preservation laws against vagueness challenges, it is quite possible that the Illinois Supreme Court will reverse the appellate court's decision and find that the Landmark Ordinance is not unconstitutionally vague. The issues raised in the appellate court's decision may not be resolved quickly. A decision from the Illinois Supreme Court is not likely for months. Even then, the case could be remanded to the trial court for additional findings, which could then be appealed. At present, the Landmark Ordinance is still in force so all existing landmark designations in the city of Chicago remain in effect, and the Landmarks Commission continues to review building permits and to review new properties for landmark designation. We will continue to monitor this case as it proceeds through the court system. Please call Schiff Hardin for additional information about this case or to discuss how the appellate court decision affects your property. ABOUT SCHIFF HARDIN LLP Schiff Hardin's real estate practice covers all aspects of real estate. Our attorneys' experience includes a particular emphasis on real estate development, especially multi-use projects — combining residential, retail, parking and public-use areas. We have handled more multi-use projects than most firms in the United States and understand the variety of things that need to come together to complete a project — things that don't always come together easily in a large project. Our depth of experience enables us to advise our clients though the process of developing these projects in an efficient and cost-effective manner. For more information, please feel free to contact us.
|