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Feature Mon Mar 30 2009

Assessing the Challenges to the Landmarks Ordinance

On January 30, an Illinois appellate court ruled that Chicago's Landmark Ordinance is "unconstitutionally vague," attracting national attention. Since then, the city of Chicago has filed an appeal to the Illinois Supreme Court, while cities from around the state and preservation groups from around the country have spoken out and filed documents supporting the appeal.

We contacted Jonathan Fine, Executive Director of Preservation Chicago, to help make sense of what the current challenge could mean for architectural preservation in Chicago.

The ruling by the appellate court jeopardizes the validity of the overall Landmarks Ordinance, and sends the cases back to the lower courts -- who will likely have to agree with the appellate court. What is the risk to the two neighborhoods in question?

Disclaimer: I am not an attorney and the answers I am giving are my personal opinion.

I think that the worst case scenario would be that the two districts would have to be resubmitted to the Landmarks Commission for review under a rewritten Landmark Ordinance. Then the entire process would have to begin again. That would mean new notices to owners, new public hearings, etc.

More broadly, what is the risk to Landmarks throughout the state, taking the future Supreme Court ruling into consideration and not?

We think that an unfavorable ruling by the Supreme Court would do a lot of damage to existing Landmarks in Chicago and set a dangerous precedent not only in the state but also throughout the rest of the country. Even if the two districts in question were to be successfully reinstated as Landmark Districts, anyone in any of the other 48 districts could overturn their Landmark Districts, or the owners of the 300 or so individually Landmarked Building buildings could do the same. Imagine if one disgruntled owner could undo 41 years of preservation progress in our city. That is essentially what could happen.

Opponents of the legislation are confident Landmarks like the Water Tower and Auditorium Building will be safe. Is there a reason to think they won't be?

Yes. The law is the law, and all Landmarks will be judged on the same merits as the two districts that were at issue in this action. The ruling essentially questions the qualifications of our Landmarks Commissioners to determine whether the works of such architects as Louis Sullivan are worthy of preservation.

There's a lot of confusion about the merits and the disadvantages of Landmarking and Landmark Districts. What do you think are the key issues involved?

A Landmarks Ordinance is a land use planning tool not unlike a zoning ordinance or a planned development. As city dwellers, when we literally live inches away from each other, there are limitations that we must accept with regards to what we can and cannot do with our property. Urban environments are delicate ecosystems, but unlike rural ecosystems, ours are built of brick and stone.

As responsible members of a community, we prosper more and are ultimately a better society when we limit the extremes of our desires. As we have seen from this economic meltdown, no one wins when an unregulated free market is allowed to trump what is best for the overall community. To that end, Landmark Districts stabilize property values and instill a pride in community.

Some opponents say Landmarks stifle the progress of architecture. As an architect and preservationist, what's your response?

The only think that stifles progressive architecture is when bad developers hire bad architects to build bad buildings.

Isn't it interesting that the worst architecture always occurs where there is the least regulation?

The Landmarks Ordinance was presciently added to Preservation Chicago's Chicago 7 list in 2008. On that same general scale, what are other current preservation threats, and what can we do about them?

The reason we put the Landmarks Ordinance on our 2008 Chicago's Seven Most Threatened actually had nothing to do with the court case. The court had not yet ruled. Last year, our concern was that we felt the city was allowing downtown developers too much liberty to modify historic Landmarks. What a difference a year makes.

Many of the redevelopment deals we were so concerned about have already fallen through because of the stagnating economy. Now we worry about what is called "demolition by neglect" which occurs when buildings are simply allowed to fall into disrepair. If there is no immediate reuse for a vacant building and if a building becomes dangerous to the public, the city will urge demolition as a means to solve the problem. Unfortunately, we may see more of this occurring throughout the city if this downturn does not right itself very soon.

About the Author:

David Schalliol is Managing Editor of Gapers Block and a graduate student in sociology at the University of Chicago. Visit his website, metroblossom, and that flickr place for more information about his projects.

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Dennis McClendon / April 13, 2009 1:01 PM

Too bad Jonathan Fine didn’t at least talk to a lawyer. I’m pretty sure that the only part of the Landmarks Ordinance that's really threatened is the provision granting automatic approval if the city council doesn't act within a year. That's the only instance in which the authority to designate a landmark is shifted from the city council to the landmarks commission. In Illinois, we give great deference to decisions made by home rule legislative bodies. The city council can—and does—downzone areas for vague reasons, or for no discernible reason at all. Most states require such rezonings to be in conformance to a comprehensive plan, but Illinois does not. The legal rationale for zoning in Illinois has been found in extremely general planning principles expressed, in a nice bit of circular reasoning, in the zoning ordinance itself.

The appellate court is also surprisingly sloppy in the section of the opinion dealing with vagueness, where it discusses "whether a person of common intelligence may determine" whether his property is affected or not. In the case of a landmark designation, the property will either have been named a landmark (with plenty of notice and record) or it will not have. Landmarks are not "discovered" after the fact; their designation only affects events in the future.

So long as the police power includes the power to regulate for aesthetic reasons (long settled in Illinois), and landmark protection is a proper exercise of the police power (settled in the 1973 Penn Central case), it's hard for me to see how an Illinois appellate court can overturn the judgment of the Chicago City Council merely because the staff report given the council included a summary that used "vague" words or criteria. In legal terms, why does not the city council's adoption of the ordinance designating a landmark "cure" any defects in the underlying commission findings?

Had the city council simply downzoned the district in question, reciting a general but meaningless reason, plaintiffs would have found their challenges quickly dismissed. Why should the result be any different when the city council actually has a good reason to protect the integrity of a neighborhood?

Finally, it's interesting to note that even though the Appellate Court cites the 2008 Napleton case, it doesn't discuss the Napleton case's main holding: that Illinois courts must uphold zoning decisions unless the court finds that it is arbitrary, capricious, and unreasonable. That's a very heavy burden for a plaintiff to prove. The Napleton case overturned a six-year-old Chicago case with a familiar plaintiff: Hanna v. City of Chicago, 331 Ill.App.3d 295 (1st Dist. 2002).

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Architecture Tue Nov 03 2015

Paul Goldberger Describes the "Pragmatism and Poetry" of Frank Gehry's Architecture in His New Book

By Nancy Bishop

Architecture critic Paul Goldberger talks about Frank Gehry's life and work in a new book.
Read this feature »

Steve at the Movies Fri Jan 01 2016

Best Feature Films & Documentaries of 2015

By Steve Prokopy

Read this column »


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