Story URL: http://news.medill.northwestern.edu/chicago/news.aspx?id=114855
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Stefan Maisnier and Kate Gardiner/MEDILL 

 


Court challenge to landmarks law leaves property owners puzzled

by Kate Gardiner and Stefan Maisnier
Feb 05, 2009


MARKSUT2

Source: Chicago Association of Commerce & Industry/Bell Federal Savings & Loan Association via Albert C. Hanna

Albert C. Hanna contends that the city of Chicago uses discriminatory zoning and landmark districts to maintain segregated communities. Here, he charts the number of new multi-family apartment buildings built within city limits. The 1971 ordinance change he refers to is a ban on the construction of 4+1 apartment buildings, which featured four floors of apartments and one level of parking. Because of this zoning change, Hanna believes the city has lost more than $1 billion in potential tax revenues.

MARKSUT4

Source: 2000 U.S. Census/Chicago Fact Book Consortium via Albert C. Hanna

Albert C. Hanna also contends that the loss of population within city limits, charted here (orange) in comparison can be blamed on a lack of affordable housing within city limits, despite an overall rise in population across the country.

MARKSUT5

Source: Okrent Associates, Inc. Oct. 28, 2008

This map charts the number of real estate downzonings throughout Lincoln Park over the course of the past 38 years. According to this map, which was provided by and funded by Albert C. Hanna, the plaintiff in Hanna v. City of Chicago, more than half, 52 percent, have occurred since 2001. He said the city's landmark districts and zoning are being used to discriminate against non-white, middle class city residents.

Developer Albert C. Hanna has been fighting what he calls segregationist landmark and zoning laws in Lincoln Park for the past 38 years. Realtor Carol Mrowka simply thinks the historic landmark district she now lives in, East Village, isn’t all that special.

The two came from different parts of the Near North Side to file a lawsuit against the city of Chicago.

A Jan. 31 opinion by the Appellate Court set a precedent that could overturn the way city buildings are declared landmarks.

And because the language used by the Chicago law is similar to landmarks’ ordinances throughout the country, it opens the door for landmarks challenges everywhere.

“This ordinance has been like this for more than 40 years,” said Landmarks Illinois Executive Director Jim Peters. “No one’s ever challenged it on these grounds before.”

Illinois Appellate Court Justice Fitzgerald Smith, writing for a three-judge panel, upheld two of attorney Tom Ramsdell’s 20 allegations. Smith said that the way the landmarks ordinance is written is unconstitutionally vague, and a so-called sunrise clause gives overly broad powers to a non-legislative body.

The opinion rejects the court’s earlier dismissal of the whole suit, and bounces the case back to the lower circuit court. Because Smith also takes the unusual step of providing the Appellate opinion on the subject, it essentially forces the court to follow Appellate instructions and find the ordinance unconstitutional.

City law department spokeswoman Jennifer Hoyle said her department wholly disagrees with the opinion, but that the city has no intention of rewriting the ordinance – for now.

The ordinance covers 250 historic buildings and 51 historic districts – more than 9,000 property owners.

Hoyle said her department is drafting a response and will be appealing Smith’s opinion to the Illinois Supreme Court as soon as possible. The city has until March 13 to respond.

In the meantime, those who own real estate that has landmark status have been contacting their attorneys, expressing concern or cautious optimism about the possibility of changing landmark status.

Jack Guthman, a Chicago zoning attorney, issued a written alert to his firm’s real estate clients, stating, “Although the Hanna case is an important decision that has the potential of compromising all existing landmark designations, the long-term impact of the ruling remains unclear.” His letter came after a headline sensationalized the ruling.

Another attorney at Guthman’s firm, Shefsky and Froelich, said his clients had been calling in or emailing him the article, asking about the ruling. Joseph Gattuso said he fielded three or four calls from clients who were concerned about the case.

“A few of them were concerned for the ordinance, and a few were happy to hear about it,” he said. Gattuso cautioned them that there was no change, yet, but he said some of his clients feel the landmark law is over-broad.

On the preservationist side of the debate, however, the ruling is what is considered alarming.

“The people who argued against the districting are … mostly people who just see property as property,” Peters said.

“Property as property” is not necessarily the whole of Hanna’s disagreement with the city, but it is part of it.

“Down-zoning and forced compliance [with the ordinance] are being used as exclusionary tactics by those with high income,” said Hanna, 78, a senior vice president with Chicago real estate development firm Draper and Kramer who has been fighting city zoning laws since 1971.

Hanna said he sees these, and other Chicago zoning, as limitations to development and an inhibition of natural growth in high-density urban areas, including Lincoln Park, especially for “poor people and blacks.”

“[Preservationists] are preserving the existing commercial areas as they are presently constituted, and I think this issue is larger than the district,” he said. “It’s the culmination of this 10-year fight to charge the city with racially-discriminating land use and the fight on the city’s part against urban sprawl.”

In a letter encouraging the districting in 2005, Ald. Manny Flores (1st) said the proposed district “contains a high percentage of historically significant buildings.”

Without the designation to protect the buildings, Flores wrote, “they are at high-risk for demolition.”

More recently, Flores said the East Village Historic District, is not an attempt to get around zoning regulations.

Responding to the opinion, Flores said, “The ordinance is in keeping with all the other ordinances nationally, applying to landmarks,” he said. “It’s fair.”

Flores said the landmarked district does not prevent people from building new buildings in the district or change the zoning in the area.

“Zoning and land marking are separate and not the same issues. Zoning speaks to volume and structure size,” he said. “They’re comparing volume to architectural significance.”

Mrowka said her motivation for the lawsuit was much simpler. “The landmarking here was not done to preserve wonderful old homes,” she said. “What makes the houses remarkable is really preservation versus gentrification.”