Developer Albert Hanna and real estate agent Carol Mrowka, two of Chicago's most vocal property rights advocates, have won their fight on constitutional grounds to invalidate the city's 41-year-old landmark ordinance. But their victory should ultimately serve the cause of preservation.
The two argued that the ordinance's criteria for safeguarding a building or district from demolition or defacement were vague, ambiguous and overbroad. Appellate Judge James Fitzgerald Smith, speaking for a unanimous three-judge panel, agreed, noting that standards relying on words like "value," "important," "significant" and "unique" are simply too loose to apply.
He went on to rule that the criteria for selecting the members of Chicago's Landmarks Commission-people who had demonstrated a "special interest, knowledge or experience" in architecture, history, neighborhood preservation or related disciplines-also are unconstitutionally vague, and that the City Council impermissibly delegated its authority to the commission by allowing its decisions on landmark designations to become law in one year if the council doesn't vote otherwise.
Although the rulings only involve Mr. Hanna's and Ms. Mrowka's properties in Lincoln Park's Arlington-Deming District and the East Village neighborhood near Wicker Park, the trial judge to whom the case has been remanded will have no discretion but to strike down the ordinance. The city, which plans to appeal the appellate court's decision, argues that the criteria governing the commission's landmark recommendations offer sufficient guidance; that even if some of the members of the commission lack expertise, all of them have valuable experience and knowledge; and that the ordinance doesn't delegate too much authority to the commission because the City Council has final approval of the commission's recommendations. But for now, every Chicago landmark is at risk.
The appellate court may have had no choice but to prize exactitude over aesthetic or historic merit and to compromise the city's protection of more than 9,000 property owners, more than 250 buildings and 51 historic districts. Truth be told, the landmark ordinance could benefit from a rewrite. Its subjective language can easily be twisted to freeze exclusive communities just as they are.
According to press accounts, Mr. Hanna sees the ordinance as a racially discriminatory weapon in the city's arsenal to check urban sprawl at the expense of homeowners whose property values decline and whose renovation cost skyrockets with landmark designation. The ordinance discourages efforts to renew neighborhoods with new construction.
Not only should the City Council tweak the ordinance's standards to ensure even-handed application by credible experts. It should also limit the Landmarks Commission's role to giving advice. As the steward of Chicago's architectural legacy, the council owes us no less.
Marc J. Lane (email@example.com) is a Chicago lawyer and financial planner and an adjunct professor of law at Northwestern University School of Law.
Our April 2009 Lane Report was adapted from a column published in Crain's Chicago Business on March 9, 2009.
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Reprinted with permission from Crain Communication Inc., Copyright 2009
The Lane Report newsletter is a publication of The Law Offices of Marc J. Lane, a Professional Corporation. We attempt to highlight and discuss areas of general interest that may result in planning opportunities. Nothing contained in The Lane Report should be construed as legal advice or a legal opinion. Consultation with a professional is recommended before implementing any of the ideas discussed herein. Copyright © 2008 The Law Offices of Marc J. Lane, A Professional Corporation. Reproduction, in whole or in part, is forbidden without prior written permission.