Share this:

Among other things, the Chicago Landmark Ordinance establishes a Commission to engage in various activities to protect and encourage the continued utilization of areas, districts, structures and buildings that are eligible for designation as a Chicago Landmark.  In considering a designation, the ordinance provides that the Commission must use at least two of seven enumerated criteria.  The ordinance contains detail including: the process for making a preliminary recommendation, owner consent to the designation, public hearing requirements, Commission recommendations to the City Council, process before the City Council, and process for amendment, recission  and reconsideration of the designation. 

                                                      

The Plaintiffs alleged that the Ordinance was facially vague in that “it did not provide sufficient specificity such that a citizen might know how to conform their conduct thereto.” The City brought a motion to dismiss and the circuit court agreed with the City, dismissing the complaint.  The Plaintiffs also alleged that the Ordinance was an unconstitutional delegation of authority to the Landmark Commission.  The circuit court again disagreed, finding that the Commission’s recommendations to the City Council of potential landmarks are merely advisory, and that the Ordinance did provide intelligible standards for the Commission to apply. Plaintiffs further alleged that the procedures amounted to an unconstitutional delegation under the State constitution.  The circuit court disagreed.  Lastly, relevant to the appeal, the Plaintiffs alleged that application of the Ordinance to their properties violated the equal protection clause and the substantive due process clause of the State constitution.  Applying the rational basis test, the circuit court disagreed.

 

On appeal, the Court found that the Landmark Ordinance was unconstitutionally vague and ambiguous and therefore it violated Plaintiffs’ due process rights.  Specifically, the subjective language contained in relation to the seven enumerated criteria, with phrases such as “value,” “important,” “significant,” and “unique” were enough to state a cause of action.  The Court was “unpersuaded…that the Commission members can be well-guided by these terms.” The Court said that the seven criteria were unconstitutionally vague and therefore do not provide intelligible standards to guide the Commission.  The Court also expressed concern over the stated qualifications for Commission members set forth in the Ordinance in terms of what it means.   Therefore, the appeals court determined that the allegation of vagueness was sufficient to state a cause of action and should not have been dismissed by the trial court. The appeals court also disagreed with the trial court on the issue of delegation of authority.  Specifically, the appeals court found that since, under the Ordinance, the Commission’s recommendations could become final within 365 days without City Council approval, the Commission has a declaratory function rather than merely an advisory one. Further, the Court noted, that “even if we were to have found that the Commission’s function was merely advisory, the seven criteria outlined in the Ordinance to assist the Commission in recommending buildings or districts for landmark status remains unconstitutionally vague, as discussed in the previous section.”

 

The appeals court concluded that the Plaintiffs did state a cause of action for vagueness, sufficient to overcome a motion to dismiss.  Therefore, the Court remanded the matter to the trial court for further proceedings regarding the issue of whether the designations and properties included therein violated the Plaintiffs’ substantive due process and equal protection rights.

 

The opinion can be accessed at: http://www.landmarks.org/pdfs/Landmarks_Appellate%20Court.pdf

 

See also, http://www.chicagorealestatedaily.com/cgi-bin/news.pl?id=32834  

 

Special thanks to David Meek, Esq. of Highland Park, IL for bringing this case to my attention.

 

For a more recent news story, see:

http://www.nytimes.com/2009/03/24/us/24landmark.html?_r=1&hpw