Jonathan Bilyk Oct. 1, 2013, 3:12pm

Two Chicago landowners have received clearance from an appellate court to proceed with their case challenging the city of Chicago’s decision to landmark their North Side neighborhoods while excluding others nearby.

At the same time, however, the appeals panel rejected the landowners’ appeal over the lower court’s finding that the city’s decision to designate the neighborhoods as landmarks was constitutional.

In an unpublished order filed Sept. 26, the First District Appellate Court affirmed in part and reversed in part Cook County Circuit Judge Sonia H. Hall, who had ruled in favor of the city government and against landowners Albert C. Hanna and Carol C. Mrowka.

Justice James Fitzgerald Smith delivered the court’s order. Justices Nathaniel R. Howse Jr. and Terrence J. Lavin concurred.

The justices’ order marked the second time the appellate court had considered the case in the last four years, as Hall’s decision in the matter followed a 2009 appellate order that reversed her initial dismissal of the case and remanded it back to the lower court.

The case first arose following an action several years ago by Chicago’s Commission on Historic Landmarks to designate the Arlington Deming neighborhood of Lincoln Park and the East Village neighborhood as landmark districts, a designation that restricts the ability of property owners to alter their buildings under city ordinance.

Hanna owns property in Arlington Deming, while Mrowka owns property in the East Village.

The landowners together sued the city, arguing, among other reasons, the city’s ordinance was too vague to be constitutional and that the Chicago City Council had improperly delegated legislative authority to the Landmarks Commission.

In response, the city argued that none of those arguments could pass legal muster and as such, asked the trial court to dismiss the case.

Hall at that time agreed with the city and granted its request.

The landowners then appealed the dismissal, and the appellate court in 2009 ruled that the plaintiffs had raised serious enough legal questions to proceed and ordered the lower court to allow further proceedings in the matter.

The landowners later filed an amended complaint, essentially restating their earlier contentions, but also adding arguments that the city erred in singling out their neighborhoods for landmark designation, while ignoring similarly situated neighborhoods nearby.

Hall, however, again sided with the city, granting summary judgment upholding the constitutionality of the city’s ordinance and landmark designations, and also dismissing the landowners’ suit questioning the legal rationale behind the city’s decision to landmark the neighborhoods.

The plaintiffs again appealed.

This time around, the appellate court reversed in part and affirmed in part Hall's ruling.

Sided with Hall on the issue of whether the city’s rules and actions were constitutional, the justices found the ordinance was not overly vague.

It also determined that the ordinance was properly approved by the City Council, that the landmarks designations were properly executed and that the ordinance did not improperly delegate legislative power to the Landmarks Commission.

The appeals panel also chided the landowners for attempting to argue that the appellate court had, in its 2009 ruling, effectively found the landmarks designations to be unconstitutional.

The justices wrote that the plaintiffs’ argument to that effect in the amended complaint was a “mischaracterization” of the appellate court’s earlier order.

They wrote that the 2009 order merely noted that the landowners had raised sufficient legal questions concerning the constitutionality of the ordinance and stressed that those questions should be handled by the trial judge to whom the case had been sent back to.

And, the justices wrote in their order, the trial judge did just that.

The justices did, however, find that the trial judge erred in dismissing the new counts the landowners brought in their amended complaint that questions the landmark designation of Arlington Deming and East Village.

Saying that the lower court should again take up those matters, the appeals panel overturned the lower court’s dismissal and remanded the case to allow the landowners to press the city to produce “a rational basis” supporting the inclusion of those neighborhoods, while excluding others.

The plaintiffs had argued, for instance, that while East Village was designated as a landmark, “very similar” neighborhoods like Little Village and Pilsen were left alone.

“We have no doubt that defendants (the city of Chicago) will most likely offer a basis for the creation of these districts as opposed to others,” the justices wrote. “But at this point in the procedural posture of this cause, whether plaintiffs (the landowners) can defeat the substantive issues and the rational basis test is not yet relevant.”

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