Jonathan Bilyk Mar. 20, 2015, 11:15am

A project to build a 13-story luxury apartment and retail building and, in the process, transform a prominent strip in Chicago’s Hyde Park neighborhood, will be allowed to move forward after an appeals panel determined neighboring property owners suing to stop the development did not notify enough of their fellow neighbors before filing suit.

On March 13, the First District Appellate Court upheld Cook County Circuit Judge Kathleen M. Pantle's decision to toss the litigation Michael Scott, James Des Jardins, Mark Graham and Lorraine Pettigrew brought against the City of Chicago and Lake Park Associates Inc., an entity affiliated with developer Mesa Development.

The ruling was written by Justice Margaret Stanton McBride, with Justice Stuart E. Palmer concurring and Justice Robert E. Gordon adding a special concurring opinion.

Mesa is currently developing a project identified on its website as Vue 53, a 13-story structure, containing 267 luxury apartment units and 30,000-square-feet of ground floor retail in the 1300 block of East 53rd Street, between South Kenwood and South Kimbark avenues

The large building is replacing a demolished gas station and parking lot on the site.

That project was approved by the city in June 2013, when the City Council unanimously approved a request from the developer, over the objections of a number of neighboring property owners to rezone three property parcels to allow for the Vue 53 complex.

Neighbors said the size of the new development would dwarf the neighborhood, in which the largest buildings previously were no more than three stories tall.

Following the rezoning approval, Scott, Des Jardins, Graham and Pettigrew joined together to sue, saying the city’s rezoning decision “would allow ‘over-sized’ and ‘out-of-character’ buildings” in the neighborhood … blocking their access to sunlight and casting ‘significant’ shadows,” while also making it more difficult for existing residents to find parking in their neighborhood.

They argued the rezoning decision should be overturned “because the changes to their neighborhood would unjustifiably diminish property values and were arbitrary and capricious, in violation of the plaintiffs' constitutional right to substantive due process.”

In December 2013, however, Pantle dismissed the suit, siding with the developer, who had intervened on behalf of the city and argued the plaintiffs failed to properly notify all neighboring property owners, as required by law, before filing their complaint.

The plaintiffs appealed, but failed to gain any traction with the appeals panel.

The justices particularly took note of the plaintiffs’ failure to notify 26 people owning property within 250 feet of the three rezoned parcels.

While the plaintiffs argued they had attained “substantial compliance” with the law, as they had mailed 125 pre-filing notices, the appellate justices said they had missed the remaining 26 property owners because of a lack of diligence on their part.

The panel faulted the plaintiffs for measuring their radius using a common address for all three properties, rather than a legal description of the properties’ boundaries. And they further chided the plaintiffs for relying almost exclusively on property tax records, and failing to consult records maintained by the Cook County Recorder’s Office.

By failing to notify those other property owners, the justices said the plaintiffs had deprived their neighbors of their rights under the law to know of the impending suit and to decide whether or how to respond to the action themselves.

“In short, the record shows that the plaintiffs made multiple errors as they tried to comply with the pre-suit notice requirement and that their failures cannot be excused or attributed to the actions of the city of Chicago or Lake Park,” McBride wrote for the panel.

On appeal, the plaintiffs also asked for clearance to proceed on the case, as, they said, they had satisfied notification requirements for two of the three parcels.

The justices rejected that argument as well.

In his concurring opinion, Gordon noted developers are often required to strictly meet similar notification standards in rezoning cases, and “the courts have interpreted the statute or ordinance to be mandatory.”

“Whoever files the suit … the language requires all property owners within 250 feet of the subject property to be given a written notice,” Gordon wrote. “It cannot be relaxed for the developer and it cannot be relaxed for the property owner because the legislature has intended for it to be mandatory.

“Anything less would cut off the rights of those people who are the most vocal about the rezoning.”

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